Intolerable situation

by | Apr 25, 2022

Appel court of The Hague, February 10, 2022

Intolerable situation

The parents have joint custody of the 11-year-old son. In 2013, the court determined that his primary residence is with the mother and that he will be with his father for a weekend every other week, as well as during half of the vacations and public holidays.

The minor stayed with the father in Belgium from December 2019 to May 7, 2021. On May 17, 2021, the mother took him to the Netherlands. At the father’s request, the court ordered the son’s return to Belgium in the court decision of December 30th 2021.

The Court of Appeal set aside this order and gives a verbal decision on the day of the hearing.

Under Article 13(1)(b) of the Convention on Child Abduction, a return order may be refused if the person opposing the return shows that there is a serious risk that the child’s return would expose him to physical or mental danger or otherwise place him in an intolerable condition.

The Court of Appeal put first and foremost that article 13 paragraph 1 sub b HKOV must be interpreted restrictively and that a reliance on it can only be honoured in exceptional situations.

The court of appeal is of the opinion that upon return to Belgium the son will be placed in an unbearable situation, as referred to in article 13 of the Convention.

In the opinion of the Court, the unbearable situation lies in the enormous suffering the son experiences at the thought of having to return to Belgium. He is visibly suffering from the fears that he has shown to the special guardian as well as during the interview with the child.

The fact that the mere thought of having to return to Belgium evokes death wishes in the son is sufficient for the Court to assume that he is currently in acute psychological distress. In the opinion of the court this constitutes an unbearable situation within the meaning of article 13 paragraph 1 sub b of the Convention.

Furthermore, it has become apparent to the court that no adequate facilities or measures, as referred to in article 11 paragraph 4 of the Council Regulation of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (Brussels II-bis), are available to protect him in this acute situation of psychological distress. The situation requires that, in anticipation of a possible return, the son should already be offered expert help in the Netherlands, but – as the Council explained at the hearing – the son cannot claim any help because he is not registered in the Netherlands.

Pursuant to article 11, paragraph 6 Brussels II bis, the Registrar of the Court of Appeal is instructed (among other things) to send a copy of the order to the Central Authority in the Netherlands, with the request to send it to the Central Authority in Belgium within 1 month.

This has to do with the fact that the Court of Appeal did not dispute that the son had his usual residence in Belgium. This means that under Brussels II Bis, the court has jurisdiction to hear the case on the merits if one of the parents requests this within 3 months. This is apparent from Article 11(7) and (8) of Brussels II Bis. That judge can then decide in the proceedings on the merits that the son must return to Belgium.