Belgium is a member of several international agreements governing unlawful movements and international abduction of children
- The Hague Convention of 25 October 1980 on the civil aspects of international child abduction;
- The convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and cooperation in parental responsibility and child protection measures (Law of 5 May 2014);
- The European Convention on recognition and enforcement of decisions regarding parental authority of 20 May 1980;
- The Council Regulations of 27 November 2003 concerning the recognition and enforcement of international judgments in matters of parental authority within the European Union (Brussels II bis).
European Court of Human Rights
The European Court of Human Rights requires Member States to favour keeping parents and their children together. This obligation must be construed in the light of the Hague Convention, but also in compliance of article 6 (1) of the ECHR and the United Nations Convention on the Rights of the Child.
The essential role of the Hague Convention
The Hague Convention is regularly applied by Belgian courts and tribunals: the family court must allocate the competence of handling claims and ruling on these “as summary proceedings” and in principle in camera (article 1322 bis-1322 octies, court of justice).
The aim of the Convention is:
- To ensure that national decisions on parental authority are respected in all subscribing States, and
- To ensure the return of a child taken abroad by one of their parents in violation of a judgment by the State where they normally reside (“immediate return”) (article 1).
In each State, a “central authority” is in charge of promoting collaboration between the competent authorities to ensure the return of children and to carry out other objectives of the Convention (article 6-7).
Non-representation of a child by a parent: criminal penalty
Article 432 of the Criminal Code sanctions a parent’s violation of a judgment ruling on the housing of a minor child.
This could be a judgment given by Belgian court or a foreign court (if the latter is covered by an exequatur).
Violation of a court decision consists of non-representation, attempted abduction and abduction of the child—even with the child’s consent. The Final Court of Appeal has ruled that one parent abstaining from reasoning or attempting to convince the children to stay with the other parent constitutes a reprehensible abstention under article 432 of the Criminal Code.
Children taken or kept abroad by one of their parents
A parent whose child has been taken and/or kept abroad by the other parent can file a claim for the return of the child before the federal body that performs the role of the Belgian central authority, when:
- The child has been moved or kept in a country covered by the Hague Convention of 25 October 1980 on the civil aspects of international child abduction;
- The child is less than 16 years of age;
- Before being moved, the child’s habitual residence was in Belgium (or another country covered by the Hague Convention of 25 October 1980 on the civil aspects of international child abduction);
- Before the child was moved, the ‘victim’ parent had custody rights for the child (parental authority in Belgian law – articles 373 at the 74 of the Belgian Civil Code), in accordance with the Hague Convention and Belgian law;
- The victim parent effectively exercised parental authority on the child and did not give consent for the child’s place of residence to be changed.
Request for a return of the child entered before the Belgian central authority
The victim parent must issue a power of attorney to the Belgian central authority and to the foreign central authority in order to act on his behalf.
Role of the Belgian central authority
The Belgian central authority can only act when a regulation (concerning international child abductions) covers both Belgium and the country where the child is located.
In this case, the central authority:
- Translates the request and supporting documents to an official language of the State where the child is located;
- Reports the request for a return to the foreign central authority;
- Requests localisation or confirmation of the location of the child;
- Requests the initiation of a friendly procedure to ensure the voluntary return of the child;
- In the event that the friendly procedure fails, requests to file proceedings before the foreign courts in order to rule on the return of the child;
- Requests suspension of judicial proceedings regarding custody of the child until the request for the return is ruled upon definitively.
If there is no international regulation in force, if the central authority does not have competency, other competent bodies are then sought out such as the Belgian Federal Public Service (SPF) for Foreign Affairs.