EUPillar S. v B. - 07/112/C - Civ. (réf.) Huy, 10 July 2007

Summary

The plaintiff is the father of the children. He has Belgian nationality and wants to obtain a final decision on the custody rights over his children A and B, born in 2005 and 2006.The parents were not married but lived together for several years. In the document instituting the proceedings, the plaintiff explains that the parties agreed to give their children a dual education, by living in Aachen, Germany during the week and in Vinalmont, Belgium on weekends. The mother left the familial home with the children and has refused all contact since 25 July 2007. The father seeks to obtain alternating access rights, which should not be hard to achieve since the parties are already used to moving between Vinalmont and Bonn. The mother contests the international jurisdiction of the Belgian courts. She has German nationality. She already seised the Amtsgericht of Bonn on 27 April 2007. She seeks to obtain primary custody of the children with a secondary right of access for the father. COURT DECISION The issue of international jurisdiction is governed by Brussels IIbis, which takes precedence over national law and the provisions of the Belgian Code of Private International Law. Compared to its predecessor, Brussels II, the scope of the new Regulation extends to all proceedings relating to parental responsibility, also outside of matrimonial proceedings. Art. 8 Brussels IIbis confers jurisdiction on the courts of the place where the child is habitually resident. The parties disagree on the actual habitual residence of the children. The father argues that the children were enrolled in the population registers of Wanze, in Belgium. The mother argues that the children lived both in Belgium and Germany, without distinction. The habitual residence within the meaning of the regulation refers to the place where the child has the centre of its affective, familial, educational and social ties. This residence is independent from the parent’s habitual residence. The habitual residence of the children is not clearly defined at this point, but it seems that they lived without distinction in Belgium and Germany. The plaintiff does not contest that the parties aimed to give their children a dual education. In these circumstances, the mother did not wrongfully remove the children within the meaning of Art. 10. Moreover, she immediately seised the competent court in Germany to settle the question of parental responsibility and custody. By seising the Belgian court, the plaintiff created a conflict governed by Art. 19. Both proceedings have the same cause of action. It must be avoided, in the European judicial area, to pursue parallel proceedings which may lead to irreconcilable decisions contrary to both the international legal order and the interests of the child. It is therefore decided to stay the proceedings. CRITIQUE The Court defines the habitual residence of the child as the place where the child has the centre of its affective, familial, educational and social ties, independently from the residence of the parents. The decisions of the ECJ in A. (C-523/07) and Mercredi (C-497/10) had not yet been handed down. The definition given by the Belgian judge is not too far off. However, given the young age of the children (1-2 years old), it cannot be excluded that the residence of the parents may be relevant. The court did not examine the residence of the children into detail, but kept to the statements given by the parties. This may also be due to the fact that these were summary proceedings. This decision is interesting because the court concludes that children may have a dual place of habitual residence. In any case, there were parallel proceedings and the decision of the court to stay the proceedings seems correct. The Court could also have started by noting there were parallel proceedings instead of developing an opinion on the habitual residence of the children. We do not know whether the Amtsgericht of Bonn decided to withhold jurisdiction.