B. c. Belgique (Requ?te No 4320/11)

INCADAT legal file Hague parental abduction

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The case concerned a child born in the United States of America in 2003. During her early pregnancy, the mother had been beaten by the father, who wanted her to have an abortion. The parents argued over the child’s custody for years. The child lived with her mother until 2007. In 2008, an alternating-custody agreement between the parents was approved by a court.
The father moved, but refused to notify his new address to the mother. In September 2008, the mother obtained an emergency temporary order restraining the father from any contact with the child until the father’s hearing or for no more than 15 days, but the father obtained cancellation of that measure the next month, despite the report of a psychologist having monitored the child for months, according to whom the judges’ decisions were not in the child’s interest.
In late October, the mother left the United States of America with the child and moved to Belgium (her country of origin). On 24 December 2008, a U.S. Court found that the child had been abducted, ordered the mother’s arrest and awarded sole custody of the child to the father.
On 8 March 2010, the Belgian Court trying the return application, following the Public Prosecutor’s Office’s opinion, held that the child’s return to the United States of America could not be justified under Article 13 of the 1980 Hague Child Abduction Convention (the “Hague Convention”) on the grounds that “the child’s return would expose her to risks all the greater since the father has obtained sole custody of the child”.
On 23 December 2010, the Court of Appeal decided not to follow the Public Prosecutor’s Office’s recommendation that the child’s return would place her in an intolerable situation, and ordered the mother to return her daughter to the United States of America within a month.
On the basis in particular of infringement of her right to family life as secured by Article 8 of the ECHR and relying on the case-law of the European Court of Human Rights (ECrtHR) as laid down in Neulinger and Shuruk v. Switzerland [INCADAT Reference: HC/E/1323], the mother appealed to the Belgian Supreme Court on 12 January 2011.
On 14 March 2011, the father, assisted by five U.S. nationals, attempted to abduct the child as she was leaving school, but was prevented by the police. On 13 May 2011, a Court at First Instance confirmed the provisional injunction preventing the father from taking the child abroad after the attempted abduction. The father did not appeal.
On 10 November 2011, the Supreme Court dismissed the mother’s appeal against the return order.
On 24 January 2012, the US Central Authority stated that the district attorney had sole discretion to determine whether criminal prosecution of the mother was appropriate. Such action would not prevent custody being awarded to the mother, but no assurances could be given to the Belgian authorities on this point.