Case number and/or case name
D'H. v M. - Trib. (réf.) Bruxelles, 17 November 2011
Summary
(Decision by the Président du tribunal de première instance - President of the Court of First Instance of Brussels)
The applicant is Belgian while the defendant has German nationality. The parties met on holiday and later established themselves at Mr. D’H.’s domicile in Wavre, Belgium. They have one daughter. The relationship between the parties worsened to the point where they decided to live apart in September 2010. The child stayed with her mother, who left Belgium on 6 June 2011 and took the child with her to Germany. The child is now domiciled in Chemnitz, the birth place of the mother.
In his application for summary proceedings, the father seeks to obtain sole parental responsibility over and primary custody of the child, and therefore the return of the child to Belgium.
The defendant contests the jurisdiction of the court. Concerning the measures relating to parental responsibility, the jurisdiction of the court must be determined in conformity with the Brussels IIa Regulation. Art. 8 of this Regulation gives jurisdiction to the courts of the habitual residence of the child. Art. 10 provides for a prorogation of jurisdiction in cases of child abduction, in which case the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall, under certain conditions, retain their jurisdiction until the child has acquired a habitual residence in another Member State.
It is uncontested that before her removal, the child was habitually resident in Belgium. Even though this is contested by the mother, the president of the court decides in light of all the facts that the father did not agree to the removal of the child to Germany. Only on 14 September 2011, Mr. D’H. was informed of the fact that the mother would not return and until August the mother still maintained that she would. The defendant thereby failed to respect the parental responsibility which was also exercised by the applicant.
The Belgian courts retain their jurisdiction.
However, the court seised is not competent to order the return of the child. In this matter, Art. 11 of the Brussels IIa Regulation refers to the 1980 Hague Abduction Convention. Art. 12 of the 1980 Hague Convention provides that the application for the return of the child must be made to the judicial or administrative authority of the Contracting State where the child is.