EUPillar M.K. v N.M. - Civ. (réf.) Verviers, 7 June 2007

Summary

The current proceedings were instituted by the public prosecutor (Procureur du Roi) on the basis of the 1980 Child Abduction Convention and the Brussels IIa Regulation, in accordance with Arts. 1322bis-octies and 1034bis-sexties of the Belgian Judicial Code. Art. 11(3) Brussels IIa provides that the court [to which an application for return of a child is made] shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged. Therefore, the request that was submitted by Mr. M.K. to stay the proceedings and refer the case back to the list of hearings, cannot be accepted. Moreover, the present court can rule only on the existence of a wrongful removal or retention of the child and issue an order of (non) return. The defendant, Mrs. N.M., is not allowed to submit counterclaims. The Court has heard the child, O., on two separate occasions (first on 3 October 2006 and then on 24 May 2007). During these hearings, the child talked about how she spends her time. She told the court that Mr. M. came to get her a few times by boat, travelling with her from Belgium to England to spend a few days of holiday there before handing her back to her mother in Belgium. She said she would like the current situation to continue since she gets along well with both parents. Pursuant to Art. 11(5) Brussels IIa, Mr. M.K. has also been given an opportunity to be heard. The court invited Mr. M.K. to appear in person, but on those two separate occasions Mr. M.K. was represented by his lawyer. The parties were not married. Under English law, the parents have joint parental responsibility when they are married. When they are not married, the mother has sole parental responsibility unless the father jointly registered the birth of the child with the mother (from 1 December 2003), got a parental responsibility agreement with the mother or a parental responsibility order from a court. Mr. M.K. does not prove whether he fulfills one of these conditions. It follows that Mrs. N.M. has sole parental responsibility so that the child could not have been wrongfully removed or retained in Belgium. Moreover, even if it were established that the parents have joint parental responsibility the court still would not have had to order the child’s return. It appears from the facts of the case that parties agreed that the child could meet the father and spend a few days with him in England from time to time. It appears that O.’s presence in Belgium follows from an agreement between the parties. SHORT CRITIQUE The proceedings were instituted by the public prosecutor, the father later voluntarily joined the proceedings. The court took care of hearing both the father – who requests the return of the child – and the child. The child was 12 years old at the time of the hearing. The court needs to determine whether there was wrongful removal or retention of the child. The court does so by determining the parental responsibility over the child under the laws of England and Wales. However, the court does not say why it believes this is the applicable law. The court does not mention the nationality of the child. The father is British and the mother is Belgian. In this case, the examination as to the applicable law could have proven very difficult since the child was born before the entry into force of the new Belgian Code of Private International Law, raising questions of transitional law; and the parents were not married so that the court would have had to establish the paternity of the father first. This is further complicated by the fact that there is uncertainty as to the birth certificate of the child: two different ones were submitted to the court, with a different name, date and place of birth.