Parental responsibility (Autorité parentale) in Belgium is a set of rights and responsibilities held by the parents, who are legally recognised as such, over a child, with the primary objective of ensuring their best interest, their well-being and their development. It is typically exercised jointly by both parents.

The concept of “parental responsibility” is detailed in Articles 371 to 387ter of the Belgium Civil Code. While the Belgium Civil Code does not give a definition, it stipulates that children and their parents owe each other respect at all ages (Article 371) and that the child is under the authority of their mother and father until they reach the age of 18 or until their emancipation (Article 372).

It is widely accepted that parental responsibility includes the ability for parents to make decisions regarding various aspects of the child’s life, always in the child's best interests (caring, supervising, living arrangements, education, healthcare, spiritual guidance, etc). It also includes administrating the child’s properties and assets.

In Belgium, the birth mother automatically obtains parental responsibility over her child, as giving birth establishes a legal parental link (filiation), which in turn grants parental responsibility.

Article 312, Section 1 of the Belgium Civil Code is clear that the individual identified as the mother on the birth certificate is legally recognised as such. Therefore, the mother obtains parental responsibility by simply being registered as the mother on the birth certificate.

Parental responsibility is granted to the parents who are legally recognised as such. Therefore, a father must first be legally recognised as the child’s father before he can obtain parental responsibility. There are two distinct situations to consider.

Married Fathers

According to Article 315 of the Belgian Civil Code, if a child is born during a marriage to the mother (or within 300 days after its dissolution), the mother's husband is presumed to be the father of the child. This legal presumption of paternity holds unless the mother remarries within the 300-day period, in which case the new husband is considered the father (Article 317 of the Belgian Civil Code).

This presumption can be deactivated, for example, when the child is born more than 300 days after the parents have separated and the parents are registered as living in separate residences.

Unmarried Fathers

The following is relevant to unmarried fathers, including fathers in registered partnership (known as cohabitation légale in Belgium).

• Acknowledgement (Reconnaissance): if the father is not married to the mother when the child is born, the father needs to formally acknowledge the child in order to be legally recognised as the father. This acknowledgment is known as reconnaissance de paternité, and involves an official statement being registered with the state authority by which the father declares that he is the father. The birth mother needs to consent to it if the child is under 18; the child needs to consent if they are over 12. The father does not need to demonstrate that he is the biological father to acknowledge the child.
• Court order: the family court can also establish a parental link – eg, if the father does not recognise the child voluntarily.

Once the father has his parental link established, he is automatically granted parental responsibility over the child.

In Belgium, a person needs to be legally recognised as a parent in order to obtain parental responsibility. In situations other than those described in 1.2 Requirements for Birth Mothers and 1.3 Requirements for Fathers), non-biological parents may establish their parental link with the child through adoption proceedings; see 1.7 Adoption for more detail. If the adoption is granted, the adopting parents will legally become the parents of the child, which will prompt parental responsibility.

The marriage of the parents itself does not directly impact parental responsibility, as parental responsibility is linked to parentage link and not marital status. However, the marriage of the parents can have an indirect impact on parental responsibility. As explained in 1.2 Requirements for Birth Mothers, the husband is automatically recognised as the father of his wife’s child when the child is born during the marriage, and therefore obtains parental responsibility over the child at the same time.

Parental responsibility is linked to parentage; the sexual orientation of the parents has no impact on parental responsibility. Therefore, like in heterosexual couples, individuals in a same-sex relationship need to establish their parental link in order to exercise parental responsibility.

In the application of Belgium law, it is possible for the child to have two legal mothers (co-mothers): for example, the wife of the birth mother can benefit from the legal presumption of parentage described in 1.2 Requirements for Birth Mothers.

However, a child cannot have two legal fathers. Therefore, the husband of a father will not automatically be recognised as the co-father even if the child is born during the marriage. The second father will need to establish his parental link through adoption.

Court Order

In Belgium, prospective adoptive parents must seek an adoption decision from the family court (Tribunal de la famille). Once they are recognised as (adoptive) parents, they will automatically be granted parental responsibility. However, becoming an adoptive parent involves a complex and thorough process where the court carefully checks that the adoption is indeed in the best interests of the child and if the prospective adoptive parents are fully prepared for their new responsibilities.

Full or Simple Adoption

In Belgium, there are two types of adoption: full adoption (adoption plénière) and simple adoption (adoption simple). It will be up to the prospective parents to indicate in their request whether they are applying for full or simple adoption, and it will be up to the biological parents (when they are known) to indicate whether they consent to a simple or a full adoption. Essentially, full adoption suppresses all legal ties between the child and their biological family, whereas simple adoption maintains some links.

Both types of adoption grant adoptive parents full parental responsibility. However, in the case of simple adoption, biological parents may request the right to maintain personal relationships with the child.

In Belgium, parental responsibility is typically shared between the parents (except in serious and exceptional circumstances when a parent can be deprived of parental responsibility by a court order). Therefore, if a parent wishes to relocate with a child, consent to this relocation is required from the other parent, provided that this second parent has parental responsibility over the child.

If the other parent (with parental responsibility) disagrees with the proposed relocation, the parent who wishes to move abroad with the child will need to seek an order from the family court (Tribunal de la famille) to allow the relocation.

In the context of Belgium, relocating to another part of the country with the child also requires the consent of the other parent with parental responsibility. If the other parent does not consent, an application to the court is necessary.

As in international relocation, the judge will consider how the move will impact the child’s established routines, relationships and overall stability and decide on the relocation request, with the child’s best interests in mind. There is no difference in the approach: it is also a case-by-case assessment and the factors taken into consideration are essentially the same.

It is not legal for a parent to take the child out of the jurisdiction without the consent of the other parent if this other parent shares parental responsibility over the child.

When a child is abducted from Belgium, which is a member of the EU and a party to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, the approach to addressing the situation depends on whether the destination country is:

• an EU country;
• a non-EU country that is part of the 1980 Hague Convention;
• a non-EU country that is part of the 1996 Hague Convention; or
• a non-Hague Convention country.

Abduction From Belgium to a Hague Convention Country

Lodging the request for immediate return

The first step that will prompt the return of a child is to for the left-behind parent to lodge their request for the child’s immediate return with the central authority of the country to which the child has been abducted. To facilitate this, the Hague Convention (Article 8) outlines three options:

• contact the central authority of the child’s habitual residence;
• contact the central authority of the country to which the child has been abducted; or
• contact any central authority of a contracting state.

Seeking help from the Belgium central authority: the SPF Justice

In Belgium, the applying parent typically seeks help from the Belgian central authority, which is the SPF Justice (Boulevard de Waterloo, 1115 – 1000 Brussels, +32 (0) 2 542 67 00, rapt-parent@just.fgov.be), available 24/7. The SPF will then forward the request for the immediate return to the relevant authority of the country to which the child has been abducted.

The applying parent is requested to:

• complete a power of attorney to authorise the SPF and the requested central authority to act on their behalf;
• complete, date and sign a request form; and
• provide the following documents:
1. an extract of the child’s birth certificate;
2. any document proving the child’s habitual residence was in Belgium;
3. any court decision(s) concerning the child’s care arrangements;
4. a copy of any written agreements made by parents regarding the child’s care arrangements;
5. a photo of the child and, if possible, the other parent; and
6. a copy of any complaint filed with the police.

When the abduction destination is unknown, the SPF Justice should assist in locating the child by contacting the other central authorities of Hague Convention contracting states.

Role of the requested central authority

Article 10 of the Hague Convention 1980 obliges the requested central authority to take all measures to facilitate the voluntary return of the child. If an amicable solution is not possible, the requested central authority will refer the case to the competent court.

It should be noted that when the requested central authority is in an EU country, the courts must specifically invite the parties to consider mediation (Article 25 of the Brussels IIter Regulation).

Once the immediate return has been requested

The courts of the requested state are then meant to order the return of the child, except in very exceptional circumstances outlined in Articles 12 and 13 of the Hague Convention 1980.

Upon a court decision ordering the immediate return of the child, the requested state must also assist in the forceful execution of this decision to ensure compliance. The European Court of Human Rights considers the failure to enforce such a decision to be a breach of Article 8, which protects the right to privacy and family life (Shaw v Hungary).

EU country

If the country to which the child has been abducted is also an EU country (save for Denmark), the Brussels II ter Regulation will apply in addition to the 1980 Hague Convention.

Abduction From Belgium to a Non-Hague Convention Country

If the state where the child has been abducted to is not a party to the 1980 Hague Convention, the left-behind parent (preferably with the assistance of a legal adviser) will need to investigate whether other multilateral or bilateral agreements exist that address the issue of child abduction.

If the country to which the child has been abducted is a party to the 1996 Hague Convention, then this Convention applies.

Regarding bilateral agreements, Belgium has signed an agreement with Tunisia, for example, that specifically addresses child abduction.

If there is no specific agreement in place, the left-behind parent will have no other option but to rely on other multilateral agreements that may indirectly address child abduction (eg, the 1989 Convention on the Rights of the Child), criminal law provisions and/or diplomatic channels to pursue the return of the child.

As mentioned in 3.2 Steps Taken to Return Abducted Children, Belgium is a signatory to the 1980 Hague Convention.

Cost of Legal Advice

In Belgium, the left-behind parent can apply using the central authority (SPF Justice). In this case, the SPF itself lodges the application for the return of the child, and the application is signed by the Public prosecutor. If there is a conflict of interest between the public prosecutor and the left-behind parent, the central authority will mandate a lawyer, but the left-behind parent will have nothing to pay: the state will cover the costs.

The parent can also choose to apply directly to the court for the immediate return of the child. In this case, they will probably want to use a lawyer, who generally charges by the hour in Belgium.

For data provided by the SPF about the number of Hague Convention cases in Belgium by year and their outcomes, please visit www.justice.belgium.be.

Court Sympathies

Belgian family courts rigorously apply the underlying principle of the Hague Convention, which is to order the return of the child, without looking at the merits of the case but will of course thoroughly assess the legitimacy of any defences brought to oppose the return. To expedite proceedings and meet the requirement for prompt resolution, Belgian law specifies that only six specialised courts (presidents from the courts of first instance in Brussels, Liège, Mons, Ghent, Antwerp and Eupen for proceedings in German) can decide on 1980 Hague Convention abduction cases, to ensure efficiency in dealing with such matters.

Applying for the Return of a Child From a Non-Convention Country

If the country to which the child has been abducted is not a party to the 1980 Hague Convention, the left-behind parent will need to bring an application to the family court for the return of the child. In this case, the court will conduct a regular application “on merits” where, instead of ordering the immediate return of the child, it will assess the best interests of the child to reach a decision.

Costs and Timescales for Applications

Unless the application for return is brought through the central authority (SPF) under the conditions described above (in which case the costs are covered by the state), the left-behind parent will generally want to hire a lawyer, who charges by the hour. The total costs will depend entirely on the duration and complexity of the case, including factors such as the presentation of defences or the lodging of appeals.

For a standard case where the immediate return of the child is ordered, proceedings typically last around a month on average.

This is not applicable, as Belgium is a Hague Convention Country.