PIL instrument(s)

Case number and/or case name

L.A. v. E.Z. - 05/637/C - Civ. (réf.) Bruxelles, 29 May 2007

Details of the court

Belgium, First Instance

Articles referred to by the court

Date of the judgement

28 May 2007

Appeal history

CJEU's case law cited by the court

Summary

The father, A., has French nationality, while the mother, Z., has Italian nationality but also acquired the French nationality. They have one child, C. In 2001, the parties came to live in Belgium. When they split up in 2005, the mother stayed in the marital home while the father rented a studio. On 22 April 2005, Mr. A. initiated divorce proceedings. He also sought joint custody over C. so that the child would stay one week with him and one week with the mother. The mother sought permission to return with the child to Belgium. Parallel to the proceedings, the parties held negotiations. The father agreed that the mother could return to Italy and accepted a secondary right of custody of the child. Two years later, on 14 February 2007, he reactivated the proceedings because the parties couldn’t agree on the financial details. He seeks primary custody of the child (with far-reaching secondary rights of custody for the mother). The father lives in Belgium and the mother and daughter live in Italy. The mother intends to keep her primary right of custody, and also seeks to obtain maintenance contributions from the father. The Court starts by examining its jurisdiction. The general rule of Art. 8 Brussels IIa confers jurisdiction on the courts of the habitual residence of the child. The mother and daughter are habitually resident in Italy, where they have lived ever since the parties separated in 2005. However, the habitual residence must be determined “at the time the court is seised”. At that time, the child was habitually resident in Belgium. She later moved to Italy with her mother. This removal was not wrongful. The 3-month period of Art. 9 has lapsed. Art. 9 is not applicable. In principle, the Belgian courts have jurisdiction. Although the Belgian Court has jurisdiction, it wants to refer this case to the Italian courts based on Art. 15 Brussels IIa. The child has resided in Italy since 2005 and the difficult relation between the parents requires additional investigation. Therefore a transfer would be in the best interests of the child, so that the Italian courts can appreciate the usefulness of such investigations. The court reopens the debates, because at least one of the parents has to request or agree with the referral. The judgment is postponed, so the parents can present their arguments on the judge’s proposal. SHORT CRITIQUE See judicial decision of 30 July 2007.