Monday, June 30, 2014

The Hague Abduction Convention in Belgium

The following are excerpts, without footnotes, of an article published in the Judges’ Newsletter on International Child Protection Vol. XX, Summer – Autumn 2013.

The full article is available on the website of the Hague Conference on Private International Law.

Concentration of Jurisdiction under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Belgium

By Myriam DE HEMPTINNE, Judge at the Brussels Court of Appeal, Brussels

When Belgium implemented the Hague Convention of 25  October 1980 on the civil aspects of international child abduction  (hereinafter the 1980 Child Abduction Convention), it added  a chapter to the Act of Assent of 10 August 1998 added to  the Judicial Code (Belgian Code of Civil Procedure) entitled “Applications relating to the protection of cross-border rights  of custody and of access” containing new Articles 1322 bis to octies. In that chapter, the legislature organised an emergency  procedure “as in summary proceedings” to deal with return  applications pursuant to a wrongful removal or retention. This  emergency procedure also dealt with applications relating to  the organisation of rights of access based on the 1980 Child Abduction Convention, together with applications based on  the European Convention of 20 May 1980 on the recognition and  enforcement of decisions concerning custody of children and on  restoration of custody of children (hereinafter the Luxembourg Convention). That procedure was assigned to the purview of the President of the Court at first instance at the location of the child’s presence.

The provisions of that chapter were revised and supplemented by the Belgian legislature when the EU Regulation of 27 November 2003 concerning jurisdiction and the recognition and  enforcement of decisions in matrimonial matters and matters of parental responsibility (“Regulation Brussels IIa”) was implemented, with the passing of the Act of 10 May 2007.

At the time, the Minister of Justice established a working group, including judges in particular, in the capacity of experts in the field. After the bill was drafted by that working  group, the legislature, faced with increasing complexity in this area of law, chose specialisation of judges and a concentration of jurisdiction, in the image of other EU Member States which had done so previously (including France and Germany, mentioned in the preparatory documents). The motives before the vote on that act are clear from the Justice Commission report, which explains that “this choice is due to the need to reinforce our courts’ effectiveness in an area growing more complex by the day. Knowledge of the instruments and international case-law,  speed of intervention, reinforcement of direct cooperation  among the judges in the various Member States, leading to reinforced confidence in the judicial systems, demanded that  specialisation of the courts” (Bill, Chamber Parliamentary Documents, session 2006-2007, 51-3002/001, p. 44 [French version]).

The Act of 10 May 2007 accordingly concentrated jurisdiction with the Courts at first instance established at the locations of Courts of Appeal (Brussels, Mons, Liege, Antwerp and
Gent) and, in those cases where the proceedings are to be held in the German language, the Court at first instance of Eupen. These cases, previously assigned to the 27 Presidents of different courts (matching the 27 judicial circuits of the country), are now, starting at the first instance, assigned solely to 6 lower-court Presidents, it being understood that on appeal, the proceedings are handled by one of the country’s ve Courts of Appeal.

The new Article 1322 bis of the Judicial Code lists the proceedings for which this concentration of jurisdiction is now to apply:
- applications based on the Luxembourg Convention for the recognition and enforcement of decisions concerning custody and restoration of the custody of children;
- applications based on the Hague Convention of 25 October 1980, for immediate return of the child, for observance of the custody rights or rights of access existing in another State or for the organisation of a right of access;
- applications for the child’s return or custody pursuant to a decision to deny return delivered in another EU Member State under Article 11 of Regulation Brussels IIa;
- applications on the basis of Article 48 of Regulation Brussels IIa, for determination of the practical terms of exercise of a right of access; and
- applications on the basis of Article 28 of Regulation Brussels IIa for recognition or enforcement of decisions relating to rights of access or return of the child.
Only the last of those proceedings may be brought unilaterally (Article 1322 bis § 2), the others requiring initiation by means of an application inter partes (Article 1322 bis § 1).
As regards territorial jurisdiction, the passing of the new Act was an opportunity to specify, by the addition of the new Articles 633 sexies and septies to the Judicial Code, that the case is to be brought before the President of the Court at first instance, established at the location of the Court of Appeal within the circuit of which, as the case may be:
- the child is present (Article 633 sexies): this situation relates to return proceedings, when Belgium is the requested State;
- the child has its habitual residence at the time of filing or sending of the application (Article 633 sexies): this situation concerns only proceedings relating to issues of custody or the recognition and enforcement of foreign decisions, or failure to abide by rights of access, since a wrongful removal or retention may not result in a transfer of the child’s habitual residence;
- the child had its habitual residence immediately before the wrongful removal or retention: this situation concerns the procedure established by Regulation Brussels IIa in the State of origin after a decision denying return delivered in the requested State (Articles 633 septies and 1322 decies § 1); or
- the defendant has his or her domicile or habitual residence, if the child is not present in Belgium: this solution provides for proceedings for recognition and enforcement of a decision delivered in another Member State (Article 633 septies). 
This concentration of jurisdiction, with a view to the specialisation of judges, should enable Belgium to meet its international obligations in the best possible manner.