EUPillar O. v S. - 2011/AR/1143 - Antwerpen, 22 June 2011

Summary

This procedure is about parental responsibility. The mother is Australian and she is resident in the UK at the moment of proceedings. The father has his habitual residence in Belgium. The mother has the right of custody of their common child. The High Court of Justice, Family Division enacted an agreement between the parties relating to the father’s rights of access during the holidays on 17 June 2010. He refused to bring the daughter back to the UK after her summer holiday in Belgium. The High Court, Family Division orders the immediate return of the child on 15 September 2010. The mother requests the enforcement of both judgments in Belgium. The first judge asked for supplementary information and documents through the Central Authority on 30 November 2010. This request was granted. He also asked the Belgian Public Prosecutor to conduct an inquiry into the living of the conditions of the child. The first judge denied recognition of the orders of the High Court of Justice on the basis of Art. 23(e) Brussels IIa. Indeed, the President of the Court of First Instance of Mechelen, Belgium had issued an order on 18 October 2010 whereby he confided the custody of the child to the father. The first judge considered that pursuant to Arts. 24 and 26 Brussels IIa, he may not review the foreign judgments as to their jurisdiction and substance, and that the same is true for the domestic decision of the president of the court in Mechelen. The Court of Appeal considers that it may refuse the application for a declaration of enforceability only on for one of the reasons specified in Articles 22, 23 and 24 (cf. Art. 31(2) Brussels IIa) and that it must examine these grounds for refusal of its own motion. The mother bases her claim on Arts. 40 and 41 (relating to the enforceability of certain judgments concerning rights of access and of certain judgments which require the return of the child) – however, Art. 40(2) provides that “the provisions of this Section shall not prevent a holder of parental responsibility from seeking recognition and enforcement of a judgment in accordance with the provisions in Sections 1 and 2 of this Chapter”. Therefore, the Court holds that it is still required to examine whether there is a ground for refusal of recognition applicable on the basis of Art. 23. The father refers to Art. 23(1)(a). The Court finds no such ground for refusal applicable to the case. The public policy exception can only be used if the application is "manifestly" contrary to public policy. The fact that the mother has a small apartment and financial difficulties does not suffice to justify the exception. Neither does the limited social integration of the mother in the UK, nor the fact she only has a temporary residence permit. She has asked for “leave to remove” to move to Australia with the child. The father argues recognition of the judgments would prevent him from seeing his child, but as the Court notes, the application for “leave to remove” is still pending and has not been granted yet. The father also invokes Art. 23(1)(c) and 23(1)(d), but the Court decides this is unfounded. Finally, the first judge had denied recognition on the basis of Art. 23(1)(e). In the meantime, the decision of the president of the Court of First Instance of Mechelen has been reviewed in third-party proceedings. In its new decision of 16 May 2011, the president of the Court declared he had no jurisdiction on the basis of Art. 19 Brussels IIa. The father had also initiated separate summary proceedings to obtain provisional measures on the basis of Art. 20 Brussels IIa Regulation, but no order has been handed down to this date. The Court cannot withhold the exception of Art. 23(1)(e). Therefore, the Court of Appeal declares the judgment enforceable in Belgium.