Can I move abroad with my child?
Two recent rulings from the Brussels Court of Appeal, read in light of the principles developed by case law
The framework: an individual choice, a joint parental decision
A parent's plan to settle abroad falls under their individual freedom. However, the question of whether the common child can follow falls under the joint parental authority. In the absence of an agreement, the judge decides by taking as his only compass the best interests of the child.
The case law of the Brussels courts has over time developed an analytical framework. Two recent rulings from the Brussels Court of Appeal confirm and illustrate this framework, in two opposing directions: a refusal and an authorisation. Analysis.
Ruling No. 1 — Refusal of relocation to Valencia (Brussels, 41st ch., 19 January 2021)
A mother wishes to settle in Valencia (Spain) with the common child, citing medical reasons among others. The parents had previously been practicing an equal shared custody arrangement that was working. The father opposes the child's departure.
The Court acknowledges the legitimacy of the parental plan but refuses the relocation. The reasoning revolves around four classic criteria:
• The emotional continuum: the child maintains a “special bond” with their father.
• The continuity and stability : the child has already experienced significant upheavals related to separation in one year.
• The proper functioning of equal shared accommodation established by mutual agreement.
• The absence of demonstration of a negative impact of the mother's health on the child.
The Court conducts a balancing of interests : the potentially deleterious effects of the mother's health in Belgium are not sufficient to justify the break of frequent contact with the father. The Court decides that maintaining the privileged bond and shared accommodation takes precedence over the mother's plan.
Judgment No. 2 — Authorisation for relocation to the country of origin
A mother, qualified by the Court as the primary parent of a very young child, requests permission to relocate him to her country of origin due to a professional imperative. She offers solid guarantees regarding the maintenance of contact with the other parent.
The Court authorises the departure based on four elements :
• The legitimacy of the invoked reason : a structural professional imperative.
• The young age of the child and his ability to adapt.
• The status of primary parent (main emotional continuum).
• The return to the country of origin of parents and the guarantees given to preserve contact with the other parent.
Perspective: what these two rulings teach us
Read together, these two rulings do not contradict each other. They instead illustrate the method of the Brussels judge, faithful to the framework established by previous case law.
1. The legitimacy of the project does not carry the decision
In both rulings, the Court acknowledges the legitimacy of the expatriation project. It is a necessary prerequisite but never sufficient. Previous case law had already pointed this out: the motivation (professional, personal, medical, return to origins) is an entry criterion, not a key for authorisation.
2. The child's interest is assessed in concreto
The judge applies a bundle of indicators: affective continuum, environmental continuum, young age, schooling, secondary accommodation, guarantees offered, previous joint project. No criterion is determinative in isolation.
3. The “reference parent” and the “privileged link”: two mirror concepts
In ruling no. 1, it is the “privileged link” with the father that tips the balance against the departure. In ruling no. 2, it is the mother’s status as “reference parent” that tips the balance in favour of the departure. These two concepts reflect the same reality: the child's emotional attachment is a central criterion.
4. The guarantees offered to the remaining parent carry significant weight
Judgment no. 2 expressly highlights the « guarantees given regarding contact with the other parent ». A credible expatriation project must always be accompanied by concrete arrangements: frequency of visits, covering travel costs, electronic communication, school holidays.
Our reading at the Divorce House
These two judgments confirm a truth that we carry in our daily support: the question of expatriation with a child is never posed in binary legal terms, but in terms of balance and project. Before going before the judge, there is a space for negotiation and construction.
Our multidisciplinary approach (lawyer, psychologist, co-parenting coach, mediator, etc) allows us to examine together:
• The reality of the project and whether it is reversible or not.
• The concrete emotional bonds of the child with each of their parents.
• The alternatives to total expatriation (extended stays, adapted sharing, professional adjustment).
• The guarantees to offer to the parent who remains to preserve regular and structured contact.
• The development of a balanced agreement, to be presented to the judge or formalised amicably.
In most of the cases we support, a tailored solution can be constructed before the judicial crystallisation, a solution that will much better protect the child than an imposed decision.
This document is not legal advice. For any questions regarding your personal situation, do not hesitate to contact us.
Our multidisciplinary team is at your disposal to assist you.