EUPillar M. v H. - Bruxelles, 27 June 2011

Summary

Mr. H. has Belgian nationality and Mrs. M. has dual Belgian-Romanian nationality. The parties married in 1998 in the Grand Duchy of Luxembourg. Their marital residence was in Mondorf-les-Bains. The spouses have one child, D. They separated in January 2008. On 29 February 2008, Mr. H. initiated divorce proceedings including an application for provisional measures before the Court of First Instance of Arlon, Belgium. Mrs. M. left for Romania with the child on 18 March and introduced divorce proceedings herself in Luxembourg on 2 April. The Luxembourg court stayed the proceedings awaiting the decision of the Belgian courts on their jurisdiction. She also brought an action for custody of the child before the Romanian courts. The Arlon court decided that the Belgian courts have international jurisdiction, but that on the domestic level the case must be referred to the courts of Brussels. After a first interim court order of 8 July 2008 which granted primary custody to Mrs. M., the mother and child moved back into the conjugal residence in August 2008. After several more court orders and mutual demands, Mr. H. finally asks for equal and alternating custody of the child as well as penalty payments in case Mrs. M. does not comply with the court order (as she has done in the past). Mrs. M. contests the jurisdiction of the Belgian courts as to these additional demands. In the disputed decision of 24 September 2009, the first judge accepted its international jurisdiction and granted equal and alternating custody. The divorce between the parties was pronounced on 13 April 2010 by the Brussels Court of First Instance. On appeal, Mrs. M. seeks application of Art. 15 Brussels IIa to obtain the transfer of the case to the Juvenile Court in Luxembourg. The first judge had recognised its jurisdiction as to parental responsibility and custody of the child on the basis of Art. 12 Brussels IIa, since the divorce proceedings between the parties were still ongoing. The first judge decided that Art. 15 was not applicable since the appellant and the child were already resident in Luxembourg at the time the court was seised, and the mother failed to request the transfer at that time. DECISION OF THE COURT The Court of Appeal considers that in matters of parental responsibility, the general rule confers jurisdiction to the courts of the Member State where the child is habitually resident at the time the court was seised. The general rule suffers certain exceptions, most notably when the parties accept to bring their case before a different court connected with that application – the superior interests of the child always being a main concern (cf. Art. 12 Brussels IIa). The Court of Appeal decides, as did the first judge, that is jurisdiction in this case is firmly established on the basis of Art. 12(1). Where Art. 15 is concerned, the Court of Appeal decides that the first judge was wrong to state that this article is no longer applicable when it has not been invoked at the time the court was seised. The Court of Appeal furthermore considers that, if indeed Art. 15(3)(a) is not applicable, as stated by the first judge, the hypotheses of Art. 15(3)(b) and Art. 15(3)(d) are fulfilled, which the first judge failed to consider. The child has a particular connection with the Grand Duchy of Luxembourg. However, the transfer to another court is not an obligation. The first paragraph of Art. 15 announces that “by way of exception” the courts “may” request the court of another Member State to assume jurisdiction. The Court of Appeal considers that the procedure has already lasted for over two years since the moment Mr. H. introduced his new demands for equal custody. The Court therefore decides that it is in the best interests for the child to settle the case as soon as possible, so that a responsible communication between the parties can resume, in the interest of stability and serenity for the child.