Yes, Belgium signed the Hague Convention (Full text Hague Convention) on 1 April 2003, but it only entered into force on 1 September 2014.

1.1 Which law applies to questions of custody and legal representation of a minor? What criteria are used to determine the applicable law?

Since the entry into force in Belgium of the Hague Convention on 1 September 2014, criteria used to determine the applicable law for matters of custody and legal representation have been regulated by the provisions set out in the Hague Convention, having regard to its universal application.(Law implementing Hague Convention into Belgian Law) Notably, Article 16 § 1 and Article 17 of the Convention set out that the law of the State on whose territory the minor has its habitual residence will regulate matters of custody and legal representation.

Concerning questions falling outside the scope of application of the Hague Convention following Article 4 of the Convention (e.g. emancipation), in principle the law of the State on whose territory the minor has its habitual residence will apply. (See Article 35 § 1 of the Belgian Code of Private International Law)

1.2 Which authority has international and territorial jurisdiction concerning questions of custody?

Concerning international jurisdiction, a three-step approach has to be taken into account:

• If the minor has its habitual residence in an EU Member State bound by Council Regulation (EC) No 2201/2003 (Brussels IIa Regulation), the application of this Regulation will prevail over both the Hague Convention and Private International Law rules. Thus, Article 8 of the Regulation in general sets out that international jurisdiction will belong to the Courts of the Member State where the child has its habitual residence (see also Article 14 of this Regulation about the residual jurisdiction). In relation to the Hague Convention, Article 61 of the Regulation equally refers to application of the Regulation over the Convention in case the child in question has its habitual residence on the territory of a Member State.

• If the minor has its habitual residence outside the European Union but in a State party to the Hague Convention, in case of persons below the age of 18, international jurisdiction will be attributed to the judicial and administrative authorities of the Contracting State of the habitual residence of the minor, in order to take measures directed to the protection of the minor’s property or person (Article 5 Hague Convention)

• If the minor has its habitual residence outside the EU en in a State which is not party to the Hague Convention,Belgian, Private International Law rules will be applicable in order to determine the international jurisdiction. In Belgian legislation, international jurisdiction concerning questions of custody/representation will belong to Belgian Courts in cases where the minor has its habitual residence in Belgium at the time of institution of the claim (Article 33 Belgian Code Private International Law)

Concerning territorial jurisdiction for dealing with questions of custody and representation, the Belgian Judicial Code determines that the judge of the minor’s domicile, or by lack thereof, its residence, has competence. (Article 629c Belgian Judicial Code)

1.3 Which authority has international and territorial jurisdiction concerning questions of representation?

Same as above, question 1.2.

A minor is a person up to 18 years of age (Article 388 Civil Code (further: CC) ). In principle, a minor has no legal capacity.  It is however allowed for a minor who has reached the age of 16 to dispose by way of a will only, and this for a maximum of half of its goods, more specifically for a maximum of half of the goods the law allows an adult to freely dispose of (principle of the reserved portion). (Article 904 CC)

2.1 Is it possible for the legal capacity of a minor to be extended in some cases (e.g. right to get married, right to make last will)?

Yes.

2.1.1 Is a decision required to extend the legal capacity? If so, who is competent to decide on the extension of the legal capacity?

In some cases, the minor has a (limited) legal capacity – with its parents’ consent and/or a  decision of the court.

There is also the possibility of an “emancipation” of the minor – either in case of marriage (Article 476 CC) or by judicial decision of the Family Court (Article 477 CC):  the legal capacity is extended and the emancipated minor will be assisted by a curator.

2.1.2 List the transactions that the minor may enter into alone (e.g. the right to make a last will) with reference whether approval of some other person or authority is necessary for such transactions.

• A minor can get married with the consent of its mother and father – this exception must be granted by the family court (Article 145 x 148 CC)
• A minor is able to conclude a marriage contract with the mere assistance of its custodian/representative (Article 1397, 1 CC.)
• In case a child has not been acknowledged in its birth certificate, an emancipated minor or non-emancipated minor with sufficient power of discernment can acknowledge his/her child by way of an authentic instrument (except for a will) (Article 328 CC)
• Further, it is generally accepted that a minor can carry out itself on an independent basis, a set of daily legal acts (e.g. open a bank account, etc. In case of doubt, it is up to the judge to determine whether or not a certain act can be considered a daily legal act to be carried out by a minor itself on an independent basis).

We understand “right of custody” as “parental authority” (Article 372 and further CC)

In principle, both parents jointly have the general right of custody of a minor, since they are both responsible for their children, irrespective of whether or not they are married, living together, etc. (Article 373, 1 x 374, 1 CC) (presumption of automatic approval by one parent of actions taken by the other parent concerning their child – See Article 373, 2 CC).However, it is possible for the court to grant the full exercise of custody to only one parent exclusively or to someone else in case of the parents’ incapacity.
If there are no more relatives, an appointed custodian will have the same rights towards a minor. (Article 405 CC)

3.1 What is the scope of the right of custody?

Care for the child’s person, education, health, housing, recreation, religious and philosophical choices, representation in all civil actions, control over the child’s goods as a bonus pater familias, maintenance obligation, etc.

3.2 Who will appoint the custodian(s), if either one or both parents/custodians are not able to act anymore (e.g. in case of death or loss of legal capacity)?

3.2.1 On who’s proposal and when the decision on appointment of custody is made?

The decision appoint a custodian (tuteur/voogd) is only made by the Justice of the Peace when both parents are deceased, or unknown, not fit to exercise parental authority, etc. Article 389 CC). As long as one parent (with legal capacity) remains, this parent can exercise parental authority alone (Article 375 CC).

The procedure for the appointment of the custodian will be initiated by the Justice of the Peace of the minor’s place of residence (Article 36 of the Belgian Judicial Code x Article 390 CC) automatically once the custody falls open and the judge has been notified thereof. The Justice of the Peace will then choose a custodian whom he/she deems fit to raise the minor and manage its goods, preferably among close relatives, and the judge will finally appoint the custodian making sure of his/her acceptance (Article 393 CC). The Justice of the Peace will, however, take into account every proposal made by one/both parents for the choice of a custodian (see infra answer to question 3.2.2.).

Once the custody arises or falls open, the Justice of the Peace will, on request of interested parties or even in his/her official capacity, issue urgent measures that are necessary to protect the minor’s person and to keep its goods. The appointment of a custodian does not put an end to these measures, since they will only expire if the judge revokes them or upon expiry of any prescribed term. (Article 391 CC)

3.2.2 Is the competent authority free in its choice of a new custodian?

One or both parents can choose the custodian of his/her/their choice beforehand but the Justice of the Peace must then ratify this choice 

• One parent: the last parent exercising the right of custody can appoint a custodian by way of a will or by way of a declaration before the Justice of the Peace of the parent’s place of residence or before a notary.
• Both parents: if both parents act jointly, it is possible for them to appoint a custodian by way of a declaration before the Justice of the Peace or a notary. (Article 392 CC)
• =>the person chosen by the parents must accept – the Justice of the Peace court must then ratify this designation (see also answer to question 3.2.2.)
• No choice by parents beforehand: the Justice of the Peace chooses a custodian appropriate for raising the child and controlling its goods, preferably out of immediate family members. (Article 393 CC)

The court will appoint the legal guardian chosen by the parent(s) unless there are serious grounds for not doing so, according to the interests of the minor (Article 392, last paragraph CC)

If no choice has been made by the parent(s), the Justice of the Peace has to choose the most appropriate custodian, preferably among the child’s immediate family members. A minor aged 12 years and above has to be heard by the Justice of the Peace beforehand. Also second degree ascendants, the minor’s brothers and sisters of age, and the minor’s aunts and uncles have to be heard or at least be called out. (Article 393-394 CC)

3.2.3 Can the right of custody belong to several persons? Is it possible to have different custodians for different areas (care of property/care of the child itself)?

It is possible for the Justice of the Peace to appoint different custodians for different areas in the minor’s interest given certain extraordinary circumstances. In that way, the child can have a custodian for the care of his/her person and a separate custodian for the care of his/her goods.

3.3 How and by whom will the right of cutody be determined if the parents are arguing about it? Is there a difference between married and unmarried couples?

In case of lack of agreement between the parents on important matters, or in case of an agreement which seems to go against the child’s interests, it is up to the competent family court to transfer the right of custody to be exercised by one parent exclusively (for some transactions only or in general, the court can also decide on which transactions the consent of both parents is necessary – Article 373-374 CC).
There is no difference between married and unmarried couples, since the right of custody is linked to the filiation of the child to its parents, irrespective of whether or not they are married.

3.4 May the right of custody be transferred to another person by means of a power of attorney?

No

This depends upon a series of factors to be taken into account. In principle, both parents jointly have the general right of legal representation of a minor, whether they are living together or not. (Article 373-374 CC) With respect to bona fide third parties, it is presumed for each parent to act with the consent of the other parent in case of one parent by him/herself posing an act of administration relative to the child’s goods, save for exceptions provided by law. (Article 376, paragraph 2 CC) However, it is possible for the court to grant the full exercise of legal representation to only one parent exclusively or to someone else (custodian) in case of the parents’ incapacity.

4.1 Who will appoint the legal representatives, if either one or all parents/other persons) are not able to act anymore (e.g. in case of death or loss of legal capacity)?

The legal representative will then be appointed by the Court.

4.1.1 On who’s proposal and when the decision on appointment of a legal representative is made?

• One parent: the last parent exercising the right of representation can appoint a representative by way of a will or by way of a declaration before the Justice of the Peace of the parents’ place of residence or before a notary.
• Both parents: if both parents act jointly, it is possible for them to appoint a representative by way of a declaration before the Justice of the Peace or a notary.
• No choice by parents beforehand: the Justice of the Peace chooses a representative appropriate for raising the child and controlling its goods, preferably out of immediate family members.

4.1.2 Is the competent authority free in its choice of a new legal representative

The Justice of the Peace has to choose the most appropriate representative who is able to pose legal acts. A minor aged of 12 years and above has to be heard by the Justice of the Peace beforehand. Also second degree ascendants, the minor’s brothers and sisters of age, and the minor’s aunts and uncles have to be heard or at least be called out.

4.1.3 Can the right of legal representation belong to several persons? Is it possible to have different representatives for different areas?

In principle, both parents have the right of representation over their child (presumption of approval by one parent of the other parent’s actions). In case of conflict, it is however possible for the competent family court to award the exercise of representation rights in relation to minors, exclusively to one of the parents (Article 374 CC).

It is possible for the Justice of the Peace to appoint different representatives for different areas in the minor’s interest for certain extraordinary circumstances. The Justice of the Peace can for example divide custody over two custodians, one competent for the person of the minor, and the other competent to manage the minor’s goods (Article 395, §1 CC). On request, the Justice of the Peace can settle disputes between the aforementioned custodians.

4.2 Are there any restrictions / extensions for the legal representative(s)?

Yes.

4.2.1 Are there some areas in which the legal representative is not competent to act (e.g. drafting of a last will, entering into marriage)?

The legal representative is never competent to draft a last will, nor to make a donation on behalf of the minor (no liberalities).
In certain circumstances, the representative’s assistance only (and not representation of the minor) is required. In order to conclude a marriage contract, for example (Article 1397, paragraph 1 CC).
Sometimes even the representative only has to give his/her consent, for example for a minor to conclude or end an employment contract (Article 43 of the Belgian Law concerning Employment Contracts)
A minor with a sufficient level of discernment is even capable of initiating a procedure before the court.

4.2.2 Is there a connection between the right of custody and the representation rights (e.g. power of representation exists only in the areas of custody)? Would it be possible for both parents to have custody but for only one to have the right of representation in transactions with some property of a minor?

Custody and legal representation are two different types of protection with regard to minors. Custody relates to the authority of parents/custodians over the person of the minor (care for the child’s person, health, etc.) whereas legal representation relates to a minor’s substantive incapacity to act (Article 1124 CC). There is a certain connection between both rights, since these can overlap to some extent. It is also possible for both parents to have the right of custody over their child whereas only one parent can have the right of representation in transactions with some property of a minor according to the law/judicial decision. In the end custody and legal representation remain two distinct types of protection for minors which can be attributed to parents/custodians/representatives in a different way depending on the circumstances at hand.

4.2.3 Is it required that all legal representatives conclude transactions on behalf of the minor jointly (e.g. both parents) or may the transaction be concluded by one legal representative of the minor alone (e.g. one parent)?

In case both parents jointly share the right of legal representation over their child, as with custody there is a presumption of automatic approval by one parent of actions taken by the other parent concerning their child (for bona fide third parties). Discrepancies have to be avoided.

4.2.3.1 Name the legal transactions (e.g. waiver of succession) the legal representative may perform on behalf of the minor if he/she is acting alone (e.g. one parent).
4.2.3.2 Name the legal transactions (e.g. waiver of succession) into which the legal representatives may enter on behalf of the minor only jointly (e.g. both parents).

As stated above, there is a presumption of both parents acting jointly with regard to the child’s legal representation.
The legal representatives of the minor always have to act jointly when conducting legal transactions on behalf of the minor for which the prior authorisation of the Justice of the Peace is required (Article 378 and 410 CC).
4.2.3.3 Would there be any difference on the requirement of joint representation in case the parents have never been married?

No

There is no distinction depending on whether a minor’s parents are married or not. It is, however, important for the child to be acknowledged by its parents and for the filiation of the child to its parents to be fixed.

4.2.4 Other restrictions for legal representatives:

4.2.4.1 Is it necessary that the transaction to be approved also by some other person or authority (e.g. parent, court or local government)? What are the formal requirements on the form of the approval?

With regard to a minor’s goods and property, approval by another authority may be required in order to protect minors and to prevent possible abusive techniques. For example, in order for parents to alienate, pledge or mortgage goods of their children, they have to first acquire the approval of the Justice of the Peace (for the list of transactions where the consent of the Justice of the Peace is necessary, Article 410 CC)
With regard to the formal requirements on the form of the approval, an effective judicial order of the Justice of the Peace has to be obtained.

4.2.4.2 Name the transactions that persons legally representing the minor may enter into only with the consent of a court or some other authority or person appointed by law.

The consent of a court or some other authority or person appointed by law will be required concerning the most significant legal acts that are taken in respect of minors (for example purchase/sale of immovable goods, acceptance/rejection of legacies, etc. Article 410 CC).

4.2.4.3 In case of a mandatory approval of the transaction by another person (e.g. the other parent) or authority (e.g. court) is there any difference whether the approval is given before or after the transaction? What are the legal consequences for the transaction if the approval required by law is denied?

In principle, it is required that the approval is given before the transaction in order for the transaction to be legal. In case the representative denies the approval required by law, the transaction will be null and void in the minor’s favour for all types of contracts leading to a minor’s simple disadvantage (See Articles 1118 x 1125 x 1305 CC).

4.2.4.4 Are there certain cases in which the legal representatives shall not act (e.g. contract on behalf of the minor concluded with parent or family member)?

Yes, as stated above the legal representative has to obtain the consent of the Justice of the Peace in order to alienate, pledge or mortgage minors’ goods, to purchase an immovable property in their name, etc.
In case of conflict between the minor’s and the legal representative’s interest, the competent judge will appoint a representative ad hoc, either at the request of any interested party, or ex officio (Article 378, paragraph 6 CC).

4.3 Are there any other restrictions related to the rights of a minor (e.g. the right of succession) for the persons who have the right of custody or the right of legal representation of a minor in addition to the restrictions specified above?

No.

4.4 May the right of representation be transferred to another person by means of a power of attorney?

Yes. Only in very exceptional circumstances, the right of representation can be transferred by means of a power of attorney for the execution of a specifically described action by another person. This has to concern an act of execution, not leaving any space for taking a judicial or economic decision (e.g. no settlement concerning the price in case of a sale, etc.). Thus, the right of representation as such is not transferred to another person by means of a power of attorney, merely the possibility to conduct a specific legal action is transferred in this respect.

4.4.1 Is the consent of all legal representatives to the transfer mandatory?

Yes (in case of parents being legal representatives, the aforementioned presumption applies – see Articles 373-374 CC).

4.4.2 Are there any restrictions to this type of power of attorney (e.g. the right of representation may not be transferred in its entirety or is cannot be transferred in regard to certain transactions)?

The right of representation may never be transferred in its entirety (see supra 4.4.)

4.4.3 What are the formal requirements for this type of power of attorney?

Concerning formal requirements, this will depend on the specific action for which a power of attorney is given (in some cases an authentic instrument will be necessary).

There is no specific document to prove the right of custody and/or representation.
Since in principle custody and legal representation are related to filiation, the minor’s birth certificate or document acknowledging the filiation between a child and its parents, will serve as evidence.
Regarding the custodian/representative, the legal decision of the Justice of the Peace/Family Court appointing the custodian/legal representative can serve as evidence.

6.1 Quelles sont les conditions pour la validité formelle d’un tel consentement/permission/autorisation?

There are no Belgian or international forms/procedures regulating the issue of parental consent when minors are travelling. Every minor travelling abroad without being accompanied by its parent(s) or guardian has to obtain the parents’ consent. Every parent has the possibility to give his/her consent with respect to the other parent as well (presumption of automatic approval by both parents). This can be put down on paper, subsequently requiring legalisation of the signature of the parent(s) by the competent municipality, and finally requiring the minor to carry this written consent with him/her on the journey. This parental written consent is strongly recommended by the Belgian Department of Foreign Affairs in case a minor travels alone or in the company of a person other than the parents. (This is, however, NOT obliged by law).

It is certainly recommended as well to check with the embassy or consulate of the country of destination, and the airline company that will be used, whether or not additional documents are required in case of minors travelling to that country alone or without their parents.

Part 1: Protection measure for adults in loss of capacity

In Belgium, there are different ways to prepare for the moment when you are no longer able to make decisions on your property or personal situation yourself. The law provides for ways to help adults who are in need of protection, and a judge can appoint a person for you who will provide this protection. In principle this is a person that is close to you, for example a relative. Only when such a person is not found, the judge will appoint a professional to take care of your affairs. This type of protection is called judicial protection, as it is decided by a judge. The justice of the peace will appoint an administrator (Art. 495 Civil Code).

In order to help the judge decide whether it is indeed necessary to appoint an administrator, a medical declaration should be attached to the file, in which a physician makes a declaration on the person’s physical and/or mental condition. This declaration cannot be older than 15 days. Judicial protection also exists in the form of a temporary measure (Art. 488bis Civil Code).

In practice, the judge will prefer to appoint just one person to manage both the assets and the person. In most cases, this will be a relative or other acquaintance of the person in need of help. Only if such a person cannot be found, the judge will appoint a professional administrator, for example a lawyer. Also, a care mandate and a judicial protection measure can co-exist. 

The judge will either determine that the administrator helps the protected person, meaning that the protected person as much as possible still makes his or her own decisions, and the administrator gives permission for the act in question, or co-signs it (Art. 497 Civil Code). When the protected person is not capable anymore of making any decisions, the judge will specifically state in the protection mandate that the administrator is the representative of the protected person.

Part 2: The possibilities of anticipating a future loss of capacity

Belgian law provides for a series of preventive acts to ensure that the will of the person who loses his or her capacity is respected, without the involvement of a judge. These measures include drafting a care mandate, making a declaration before a judge containing a request on which person to appoint as your representative in the future, and exercising patient rights. 

A. The care mandate (living wills and enduring powers of attorney)

Extrajudicial protection consists of a care mandate, which you draft yourself at a time you are not in need of help. This means you need to be legally competent to draft such a mandate. This mandate is meant for others to help you manage your assets, for example making payments or representing you in legal affairs. The care mandate has to be very detailed, so that it is clear for the mandate holder which actions he or she can take. 

Since this type of protection does not involve a judge, it is called extrajudicial protection. The care mandate does need to be registered in order to be valid. The Royal Federation of Belgian Notaries holds the register, which is called the Central Register of Mandates. It is not necessary that the care mandate be drafted before a notary, except when arrangements are made regarding a real estate transaction. In addition, when you want to use the care mandate for inheritance planning purposes you need the mandate to be in the authentic form, drafted by a notary. Belgian law provides for a series of preventive acts to ensure that the will of the person who loses his or her capacity is respected. 

The care mandate offers the possibility to appoint a trusted person as a representative in case a person may lose his or her ability to act, as a result of for example an accident, illness or advanced age. This allows decisions on the person and his property to be made without a judicial decision declaring the incapacity. These preventive powers should be distinguished from ordinary powers, which expire with the loss of capacity of the principal. These enduring powers of attorney may be granted with immediate effect, so that the representative may begin to exercise his powers immediately (even if the principal retains his or her capacity to act) or it may establish the conditions under which the mandate will become effective. 

B. The declaration of preference

If you do not want to draft a care mandate, but you want the judge to appoint a specific person for you to take care of your interests, you can make a declaration before a judge or a notary that you want a certain person to be appointed as your administrator at the time you need one. This is called a declaration of preference.

Any person with sufficient capacity to act may appear before the justice of the peace or a notary to propose a person whom he or she wishes to have appointed by the judge as his or her legal representative when a situation of incapacity occurs in the future. This declaration can also contain the measures or criteria to be taken into account with regard to the person or the property. This declaration needs to be an authentic act and has to be registered in a Central Register kept by the Royal Federation of Belgian Notaries.

C. Patient rights / advance decisions on medical treatment

Advance decisions on medical treatment  are used to provide instructions to caretakers, or to appoint a trusted person to give them at the appropriate time in the event that a person is no longer able to express his or her willingness to accept or refuse medical treatment, for example as a result of an accident or illness. 

In Belgium, several solutions exist in this field:

A power of attorney granted to a person to represent the patient and make decisions when the latter is no longer able to exercise his or her rights himself or herself. 

A written declaration specifying that the patient refuses a specific type of treatment/procedure. Professional practitioners need to comply with this request. 

A written declaration that the person refuses to donate his or her organs after his or her death (if there is no such declaration, organs are automatically donated in Belgium, unless refused by the patient’s close relatives). 

A written declaration containing an advance request for euthanasia: any person having legal capacity can, in anticipation of a situation where he or she is no longer able to express his or her wishes, authorise a medical professional to perform euthanasia via a written declaration (under the strict national legal conditions). This declaration must be made in writing, in the presence of two witnesses. The declaration may only be taken into account if it was drawn up or confirmed less than 5 years prior to start of the person’s incapacity to express his or her wishes. This declaration may be lodged with the authorities of the municipality where the person in question has his or her habitual residence.