Reconocimiento de una situación jurídica relativa al estatuto personal válidamente creada o modificada en el extranjero: Bélgica

The case law of the CJEU and the ECtHR has the potential to enhance the recognition of a status acquired abroad. The Belgian courts have consequently reacted, especially in the field of international name law and cross-border surrogacy. This report describes how the aforementioned case law has changed and is changing the application and usage of private international law methodology and practice.En algunas materias relacionadas con el estatuto de la persona, la jurisprudencia del TJUE y del TEDH ha fomentado el reconocimiento por parte de los Estados de las situaciones jurídicas válidamente creadas o modificadas en otros Estados. Esta jurisprudencia ha cambiado y está cambiando la metodología y práctica propias del Derecho internacional privado de producción interna. Este trabajo analiza los efectos de esta jurisprudencia europea sobre el Derecho internacional privado belga cuando este se enfrenta a una situación jurídica relacionada con el estatuto de la persona que ha sido válidamente creada en el extranjero y que se quiere hacer valer en Belgium

The ‘right’ of a child placed under Kafala care to reside within the EU with his guardian(s) : the emergence of a European Family Law? : Case note to SM v. Entry Clearance Officer, UK Visa Section (C-129/18)

SM is a case of the Court of Justice which concerns the question whether a child placed in kafala care can be regarded as a family member under European law for the purpose of family reunification in the context of free movement rights under Directive 2004/38. Kafala is a child protection measure and the recognition of a kafala agreement is governed by the 1996 Hague Child Protection Convention.3 Algeria is not a Contracting Party to this Convention. Consequently, the recognition of kafala agreements from Algeria is dealt with by domestic private international law rules. Neither the 1996 Hague Child Protection Convention, nor the domestic private international law rules, however, deal with the consequences in terms of residence rights, which impact the right of EU citizens and their family members to move and reside freely within the EU. A tension thus exists between the interest of the State to determine which personal status it recognizes under private international law and the rights it attaches to this recognition, and the interest of the EU to ensure the effectiveness of EU free movement rights. The judgment of the CJEU in SM illustrates this tension, as well as the difficulty to appropriately assess which approach is best to guarantee the interest and protection of the child placed under kafala. Both private international law and European law are taken aboard in this analysis

Foreign birth and marriage documents : the voice of Belgian and Dutch public servants

In 2019, the Institute of Private International Law at Ghent University (Belgium) launched a bilingual (Dutch/French) online survey in Belgium and the Netherlands. The objective of the survey was to examine how Belgian and Dutch public servants deal with foreign documents that record the personal status of people. Thanks to the cooperation of the Belgian and Dutch associations of registrars (Vlavabbs, Gapec and NVVB), the Belgian Immigration Office (DVZ/OE), the Dutch Immigration and Naturalisation Service (IND), the Belgian Federal Public Service Foreign Affairs and the Dutch Ministry of Foreign Affairs, it was possible to use and analyse the data of 219 respondents. This article elaborates on the Belgian and Dutch rules on the recognition of foreign marriage and birth certificates, and explores how those rules are (not) applied in practice by examining the results of the survey

Crossing borders : proving your personal status : interactions between private international law and human rights law

The increasing mobility of people leads to the worldwide circulation of documents that record the personal status of people (e.g. birth, marriage, death). The recognition of these documents traditionally belongs to the field of private international law (PIL). This dissertation first maps the PIL rules applicable in Belgium and the Netherlands and scrutinises whether and to what extent human rights law and EU principles can support people to obtain or prevent the recognition of a personal status obtained abroad. Legislation, legal doctrine and case law from the ECtHR and the CJEU has been examined in detail. Subsequently, this dissertation looks into the application of this legal framework by Belgian and Dutch public servants and judges when they are confronted with a request to recognise a foreign marriage, legal parent-child relationship or kafala. A bilingual (Dutch/French) online survey was distributed among Belgian and Dutch public servants to find out more about their working methods. The approach of Belgian and Dutch judges was identified by analysing over 500 published and unpublished judgments