EUPillar L.A. v. E.Z. - Bruxelles, 21 February 2008

Summary

The first judge allowed a transfer of the case to the Italian courts on the basis of Art. 15 Brussels IIa. Mr. A. lodged an appeal against the latter decision. He believes the Belgian courts are better placed to hear the case. COURT DECISION It suffers no doubt that the first judge had jurisdiction at the time the court was seised on 22 April 2005 on the basis of Art. 8 Brussels IIa. At the time of the first pleadings in that case, on 15 May 2007, the child and his mother had been living in Italy for two years, by agreement of both parties. The Court considers that the objective conditions of Art. 15 Brussels IIa were fulfilled: the transfer had been agreed to by at least one of the parties, in this case the mother (cf Art. 15(2)), the child has a particular connection with Italy (cf Art. 15(3)). The child currently resides in Italy and had already lived in Italy for two years before coming to Belgium, his mother lives in Italy, and he presumably has dual French-Italian nationality. The Court now has to examine whether a transfer would be in the best interests of the child. The first judge thought it was in the child’s best interests, because Mr. A.’s objections were part of a particularly heated debate between the parents and it had to be avoided for the child to be caught in the middle. On his end, Mr. A. puts forward several arguments to show that a transfer would not serve the child’s best interests. First of all, he believes – based on a book that came out in 2005 – that the judicial cooperation between States isn’t optimal. The Court denies this: the decision of the Belgian court of 30 July 2007 had been communicated to the Italian courts through the Central Authorities, and the Italian courts already accepted jurisdiction and set a hearing date. Mr. A. submits that he wasn’t notified of the hearing, but it appears that he learned from the hearing from the mother’s lawyer and that he found Italian legal counsel to represent him. He also complains about translation costs, but that argument is dismissed as well. Since the parties live in different countries and speak different languages, translations would have been necessary also if the proceedings took place in Belgium. Mr. A. then claims, supported by a legal opinion written by his Italian legal counsel, that proceedings in Italy would take two to two and a half years. This claim is contradicted by the mother’s counsel. The Court of Appeal is inclined to believe her since the proceedings in Italy went very swiftly up until now. Mr. A. also fears that the application of Italian divorce law would set the father aside, which is also contrary to the best interests of the child. The Court of Appeal notes that the Italian Civil Code also confirms the principle of joint parental authority, the same as under Belgian law. In case of separation, even if the parent who has custody of the child also exercises parental authority, the other parent can still take part in all important decisions and is allowed to watch over their education and schooling. Finally, Italy is also signatory of the New York Convention on the Rights of the Child, which confirms that the best interests of the child are a decisive criterion. Finally, Mr. A. fears that social investigations that have to be carried out would take too much time in Italy, at least four months. Again, this is based on a unilateral legal opinion of his lawyer. Also, it is not said that it would go quicker in Belgium. Here, too, you may have to wait 3 or 4 months before a legal expert is available to start his investigation, and 3 to 6 months before he can submit a report. The Court of Appeal confirms that it is in the best interest of the child to transfer the case to the Italian courts. It is likely that a social investigation will be carried out and that the child itself will have to be heard. Since the child lives in Italy, goes to school there and has family there, it is best that any investigations are carried out in Italy.