BELGIUM Law and Practice Contributed by: Larissa De Wulf and Carolyn Vanthienen, Tiberghien
The child’s habitual residence is the main criterion. In some cases, the child’s nationality or the location of the parents’ property may also serve as a jurisdictional connecting factor. Parental Responsibility and Protection of Minors If the minor child is habitually resident in the territory of a member state of the Brussels II ter Regulation/ Brussels II bis Regulation (depending on the date of the application), the court will apply that regulation. As a general rule, the Brussels II ter Regulation states that the Belgian courts have jurisdiction in matters of parental responsibility over a child who is habitually resident in Belgium at the time the court is seized. The habitual residence of the child is the place where the child has the centre of their social life, which is deter ‑ mined based on the specific facts and circumstances of the case. It is also important to note that the Belgian jurisdic ‑ tion will be assessed at the time the court is seized. This means that the potential relocation of a child to another country during the Belgian proceedings will not affect the international jurisdiction of the Belgian court. However, the Brussels II ter Regulation states some exceptions – for example, in the case of the lawful move of a child or wrongful removal or retention (Arti ‑ cles 8, 9, 10, 11 and 12). If the child has their habitual residence in the territory of a state that is not a mem ‑ ber of the Brussels II ter Regulation, the Belgian court will apply the rules of the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recog ‑ nition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protec ‑ tion of Children (the “Hague Convention of 19 October 1996”) if the state where the residence of the child is fixed is subject to it. According to the Hague Convention of 19 October 1996, a court may have jurisdiction based on the fol ‑ lowing: • the habitual residence of the child (Article 5);
• as regards refugee children, or children whose habitual residence cannot be established, the pres ‑ ence of the child (Article 6); • in the case of wrongful removal or retention of the child, the habitual residence of the child immedi ‑ ately before the removal or retention of the child (Article 7); • in exceptional cases, a contracting state that is better placed to assess the best interests of the child (Articles 8 and 9); • the discretion of the court to protect the body or property of a child where the court is determining divorce or separation of the parents (Article 10); or • exceptional jurisdiction limited to urgent and provi ‑ sional measures (Articles 11 and 12). If no state bound by the Brussels II ter Regulation or the Hague Convention of 19 October 1996 has juris ‑ diction under these instruments, the Belgian court will apply the rules of the Belgian Code of Private Inter ‑ national Law, which has jurisdiction in the following cases: • the defendant has their domicile or habitual resi ‑ dence in Belgium (Article 5); • close ties with another case pending before a Belgian court – in which case, it is preferable to assess these cases together (Article 9); • exceptional jurisdiction when there are very close ties to Belgium and proceedings in another coun ‑ try are impossible or it would be unreasonable to demand the proceedings be filed in another coun ‑ try (Article 11); • the child has Belgian nationality (Article 32); and • the management of assets located in Belgium (Article 33). Maintenance Contributions for Children With regard to maintenance contributions for the chil ‑ dren, the Belgian court will apply the Maintenance Regulation 4/2009 of 18 December 2008. As a general rule, Article 3 of the Maintenance Regulation 4/2009 states that the Belgian courts have jurisdiction if: • the defendant is habitually resident in Belgium; • the creditor is habitually resident in Belgium; or • the Belgian court, according to its own law, has jurisdiction to entertain proceedings concern ‑
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