Cour d’appel de Bruxelles, 5 mai 2009, No de r?le : 2008/JR/177

INCADAT legal file Hague parental abduction

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Habitual Residence – Art. 3
The Court pointed out that in accordance with the Belgian code of private international law, the Court seised is required to ascertain sua sponte that it has international jurisdiction when it observes an element of diversity in the dispute. It added that the connecting factor selected is that of the child’s habitual residence.
According to the father, the Belgian courts had jurisdiction owing to the wrongful retention suffered by the child. The Court noted that immediately before its retention, the child had its habitual residence in Belgium, as did its parents. Yet under both Polish and Belgian law, the right to determine the location of the child’s residence is granted as of right to both parents. Accordingly, the mother had no authority to modify the location of the child’s residence unilaterally.
The Court of Appeal observed that starting in mid-August 2007, the father had asked the mother for the date of their return to Belgium. Until October 2007, he believed that the mother would return after completing her master’s degree.
The court added that on the basis of the evidence in the record, at no time between July 2007 (when the child still had its habitual residence in Belgium) and 3 December 2007 (the date when it may be considered that the child now had habitual residence in Poland) did the father expressly consent in the establishment of the child’s habitual residence in Poland. Accordingly, there had indeed been a wrongful retention.
Acquiescence – Art. 13(1)(a)
The Court of Appeal observed that the father had drafted in 2008 two attestations of his consent for the child to reside in Poland. These documents, according to the Court, had indisputably been drafted at the mother’s request, possibly pursuant to some pressure.
Nevertheless, the Court of Appeal noted that at no point did the father claim the child’s return to Belgium, but on the contrary offered to travel to Poland to care for the child. It deduced that this constituted acquiescence.
Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)
In accordance with Article 10 of the Brussels IIa Regulation, the courts of the State where the child was habitually resident immediately before the retention shall forfeit jurisdiction if the child has acquired a habitual residence in another State and the person having rights of custody has acquiesced in the retention.
The Court of Appeal deduced from the father’s acquiescence that since the child had acquired a habitual residence in Poland, the Belgian courts had forfeited their jurisdiction to try the case.
On a subsidiary basis, the Court of Appeal added that in accordance with Article 10(b)(i) of the Brussels IIa Regulation, there were further grounds for denying the Belgian courts’ jurisdiction: the child had resided for 21 months in Poland where it had acquired a habitual residence and had indisputably settled, and the father had not made any application for return whereas he had known from the outset where the child was located.
Author of the summary: Aude Fiorini