Belgium

Parental abductions on the rise

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Table of Contents

Introduction

Belgium’s definition of the best interest of a child takes into consideration many factors, including the circumstances of child and parents, the capacity of parents, and child’s safety and well-being.

Background

Belgium is experiencing an increasing number of international child abductions each year. In 2019 alone, 905 Belgian children were victims of international abduction or an abduction attempt. This is almost twice as much as in recent years. The number of abducted children has gone up year after year, despite legal measures and international agreements that have been put into place.

Two institutions collect and report data on missing children and child abduction in Belgium. The Belgian Central Authority plays an important role, especially when it comes to taking action abroad. Child Focus, an NGO whose mission is to help and protect missing and abused children, also collects data. They do so by offering consultancy, assisting the victims and their parents, and facilitating cooperation between parents, police, and law courts. Child Focus plays a very important role and offers additional help where the state is sometimes lacking.

Call To Action

Joint 50-50 custody is the default option in Belgium and parents should not have the opportunity to deviate from this unless the safety of a child is directly threatened. The state should preserve this status-quo and not intervene in parental feuds to prevent them from manipulating courts to their advantage. Parents should learn to come to mutual agreements through mediation.

Resources should be allocated to preventing divorce, rather than incentivizing it. Parents should receive help to learn to deal with their problems, rather than receiving help to break up their families. The state should not support the financial racket by forcing parties to pay child support or alimony. This means that parents have to use their agency to come to solutions and compromises, rather than weaponize courts against the other parent.

Cross-border family mediation led by an impartial and qualified third party works faster, is cheaper, and more efficient with solutions being voluntary and based on the best interest of the child. More resources should be allocated to developing and sustaining networks of associations, lawyers, and cross-border mediators who facilitate the resolution of abduction cases.

Given the success of bilateral agreements with Morocco and Tunisia in reducing international parental abduction, Belgian authorities should make such agreements with countries where children are most often abducted to these days.

Family Law

In Belgium, parents who live together have joint authority of the children (Article 373 Civil Code). This joint parental authority remains intact even after the breakdown of a marriage (Article 374 of the Civil Code). This means that every parent is obliged to contribute to the costs associated with raising the children. The parents have to agree on the payment of child support and if no agreement can be made, one parent can be forced to do so through the courts.

Joint custody has been the default option for all divorces since 1995 and only under very exceptional circumstances can a judge order sole custody.

In the event of a divorce, an ex-spouse can receive child support and alimony pay if he or she can demonstrate the need. Under exceptional circumstances, the duration of the benefit may not exceed the duration of the marriage. An ex-spouse who, for example, has committed a serious mistake or has been found guilty of violent abuse, cannot receive alimony.

In Belgium, fathers have traditionally paid child support and alimony to mothers as men are generally more active in the labor market and earn more on average. Mothers are more often granted custody of the children. However, as most divorced parents today agree on 50-50 custody, the need for child support is slowly disappearing. In 2017, 201,400 parents paid child support – 20,000 less than in 2016.

Parental Abduction

Domestic

On a domestic level, Belgian law punishes the kidnapping and hiding of minors. A distinction is made between the abduction of a child under or over the age of twelve. Abduction and hiding a child under the age of twelve is also considered abduction and hiding, even if the child follows you voluntarily. Hiding means that you are keeping a minor with you, who you know has been abducted.

The penalty for both forms of abduction is imprisonment for a minimum of five years and a maximum of ten years. If the child's abduction results in an incurable illness, permanent physical or mental incapacity, complete loss of organ use, or severe mutilation, the sentence will be increased to fifteen to twenty years of imprisonment. If the child dies as a result of abduction or concealment, the sentence will be increased to twenty to thirty years. If you are suspected of keeping a minor who you know has been abducted, you may be punished with the same penalties as the child's abductor. If the perpetrator of abduction or concealment voluntarily returns the child within five days after the abduction, the prison sentence can be reduced.

In 2019, 95 children and young adults disappeared in Belgium. Because the nature of their disappearance is not always clear (an abduction is not always witnessed or claimed), they are defined as undefined disappearances. 9 of the children who disappeared have been found dead.

International

Contrary to popular belief, it is mainly parents or known third parties who kidnap children in Belgium. In 72% of international parental abduction cases in Belgium, the mother is the abductor. 75% of the children that are abducted from Belgium are younger than 10 years.

According to research, those abductions seem to mostly take place when mothers feel that their children are threatened. The countries where children have usually been abducted to over the last decade are mainly in Europe, with France as a frontrunner. This could be due to the relative ease of travel within the European Union.

Other countries where Belgian kids have been abducted to are the Netherlands, the UK, Spain, Turkey, and Poland. Many children abducted by parents used to be taken to Morocco and Tunisia. Since the signing of bilateral agreements with Belgium, a steady decrease has been observed. This proves that such agreements can be effective when fighting international child abduction.

Belgium has signed several international child abduction treaties over the last few decades. They only work when they are signed and ratified by many countries at the same time. Some of the newest treaties effectively replace old ones and are an attempt to plug the gaps where previous policies regarding children have been lacking.

Belgium has signed the European Convention of Luxembourg, the Brussels II bis Regulation, and finally The Hague Convention on Child Abduction. While the Hague convention is mostly used for child abductions outside the EU, the Brussels II bis regulation is mostly used for cases that happen within the EU. All those conventions aim at facilitating juridical procedures between the countries. It is an attempt to streamline jurisdiction and protect the rights of the children where the domestic law does not apply.

Despite those treaties, it still proves to be very challenging to return children home, because not all countries ratify those treaties. Because those treaties are also not legally binding, they are hard to enforce.

In 2015, Belgium made 91 demands for returns under the Hague convention. 45% of those demands ended with the child’s return to Belgium. On average, it took the Belgian Central Authority 211 days to find an agreement with the foreign authorities. This shows that procedures can be long and inefficient.

Parental Alienation

Parental alienation is when one parent brainwashes the child to distance, dislike, or even disown the other parent. It is a form of emotional manipulation that cannot be justified by reasons to keep the child safe, such as abuse.

Belgian judges are well familiar with parental alienation and concerned with how it disrupts a child’s right to be heard. Judges do their best to spot parental alienation however it is not easy to recognize it. They, therefore, avoid using the term parental alienation and prefer to label it as contact break-up. If they suspect parental alienation, judges will often seek the advice of a psychologist-expert or order a social investigation.

When judges suspect parental abduction, they often focus on explaining to both parents their responsibility towards their children and encouraging them to restore mutual respect. For now, there are no legal tools at hand.

Prevention

Belgium does not have an official prevention plan, but the Federal authority has issued several pieces of advice. When parents fear the cross-border abduction of their child by another parent, the Federal Administration recommends the following steps:

  1. Ask the municipal administration of the child's place of residence not to issue a passport in the child's name without your written consent.
  2. Consult a lawyer to obtain a judgment that governs the child's situation and may include measures to prevent abduction (for example, a ban on leaving the country).
  3. In case of a judgment prohibiting the other parent from leaving Belgian territory together with the child, ask the local police of the child's place of residence to enter a preventive alert for the child and the other parent in the Schengen Information System.
  4. Inform your child's close relatives and those of your child about the risk of abduction: ask them to pay attention and inform you of any unusual signs.

Missing Child

What to do if your child is missing

The circumstances in which children disappear vary. A child can disappear in the middle of a large crowd during a family outing, or he/she might not show up at home, might not be reachable, or could disappear while under the supervision of a parent or third party.

The feelings of anxiety, powerlessness, and anxiety are painful for every parent. That is why it is important to know how to deal with this, what steps you should take, and who in Belgium can offer you support in finding your child. It is difficult to determine immediately after a disappearance what exactly is going on, so it is important to report the disappearance as soon as possible.

Disappearance in Belgium

  • Contact your loved ones and the child itself. Via cell phone, e-mail, Facebook Places where the child follows his/her normal daily activities (school, sports club, etc.) The persons the child would go to

  • Contact Child Focus. This is a public benefit foundation that deals with missing and sexually exploited children. The organization is available 24/7 and makes every effort to find missing children. They can be reached at the toll-free number 116 000. They offer counselors who provide assistance to the families and facilitate cooperation between the parents, the police, and the courts.

  • Contact the local police department. They start an investigation and a search for the missing child.

Disappearance abroad

In any case, the following procedure is recommended:

Keep or restore the dialogue with the abducting parent.

Start a mediation procedure. This is cheaper and often more effective than taking legal action. In Belgium, you can reach out to Cross-Border Family Mediators. This network uses one mediator per country. This mediation is almost free of charge and the project is financed by the European Commission.

Child Focus studies have shown that many parents have high expectations when it comes to applying Belgian judgment in a foreign nation. They often believe that Belgian police forces can just walk into a country with that judgment in their possession. The reality is that those judgments offer very few powers, especially if the other country has not signed any agreement with Belgium. Therefore, Child Focus also advises against legal action.

Federal Authority of Justice

If mediation fails, a file can be opened via the Federal Contact Point* under the following conditions:

  • The child has been transferred to one of the countries bound by the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.
  • The child is younger than 16 years of age.
  • Before the transfer, your child was a habitual resident of Belgium (or another country bound by the Hague Convention).
  • Before the transfer of your child, you had custody of the child within the meaning of the Hague Convention.
  • You exercised parental authority over the person of the child, in other words, you contributed to the decisions concerning your child.
  • You did not give permission for the change of residence of the child.

Two documents must be filled in before the application is made, two powers of attorney, and an application form.

*Federal Public Service Justice Directorate-General for Legislation and Fundamental Rights and Freedoms Department of International Cooperation in Civil Affairs Federal Contact Point International Child Abductions

Waterloo Avenue 115 1000 Brussels T +32 (0)2 542 67 00 (24/24 and 7/7) F +32 (0)2 542 70 06 kinderontvoering@just.fgov.be

Foreign Affairs If the country to which the child is abducted is not linked to Belgium by international regulation, the Federal Contact Point will refer the application to the Federal Public Service Foreign Affairs.** In this case, the file is followed up by Belgian embassies and consulates. From the moment they locate the child, the Belgian consular agents can try to establish contact with the abducting parent. They try to do so by:

  • Obtaining information about the child's condition.
  • Attempting to mediate with the abducting parent
  • Collaborating with the local authorities to find a compromise between all parties.

**FPS Foreign Affairs Directorate General Consular Affairs International Judicial Cooperation Department Cell Child abductions

Carmelite Street 15 1000 Brussels T +32 (0)2 501 81 11 F +32 (0)2 513 55 47 c1mail@diplobel.fed.be

Legal Disclaimer

The materials available on this web site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem.

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