What is the meaning of 'continued impossibilty'?

What?

The continuing impossibility of exercising parental authority, which justifies the vacancy of guardianship, refers to any situation in which the father and/or mother, in fact or in law, is/are unable to assume the duties and responsibilities that parental authority entails (Brussels (3rd k.) 13 November 2008.).

This may include: 

• a psychological impossibility: e.g. the parent has been declared legally incapacitated, is an extended minor;
• a legal impossibility: e.g. the parent is under administration;
• a physical impossibility: e.g. the parent resides abroad and has (almost) no contact with the child.

Establishment of continued impossibility

In certain cases, this continuing impossibility will exist by operation of law; this is the case of:

• protective measures with a declaration of incapacity by the justice of the peace (Art. 492/1 old Civil Code);
• a presumption of absence established by the justice of the peace (art. 112 et seq. old Civil Code);
• a declaration of absence by the family court of both parents or sole parent (art. 118 et seq. old Civil Code).

In other cases, this continuing impossibility will have to be established by the family court, in accordance with the procedure set out in art. 1236bis Judicial Code.

Note: WUYTS, T., ‘Serious failures to fulfil obligations as a parent do not give grounds for custody to arise’, T.Fam. 2007, vol. 5, 90-96.

An annotated judgment of the Court of Appeal provides more guidance on what exactly the ‘continuing impossibility’ means. The judgment is one of the only published rulings applying the new procedure to determine continuing impossibility. 

The central question in the judgment was: what facts can give reason to the continuing impossibility of exercising parental authority and thus result in the creation of custody?

First and foremost, the cause of the impossibility must arise from circumstances beyond the will of the parent concerned. By contrast, the circumstances, which give grounds for the parent's disqualification, are determined by the will of the parent concerned.

Second, the cause, of the impossibility, must result in the complete impossibility of parental authority being exercised by the parent concerned. Thus, ordinary temporary impediments will never lead to the creation of guardianship. Only if it can be proven with certainty of facts that the parental authority obligations can no longer be exercised in a permanent manner the guardianship will become vacant. 

Here, the court has a wide margin of discretion. For example, a small prison sentence will not be seen as a continuing impossibility. Furthermore, it is also not required that the impossibility be permanent. However, the following situations may give rise to impossibility for the exercise of parental authority:

• a long-term imprisonment, disappearance, internment or psychiatric admission;
• the appointment of a provisional administrator;
• the long-term settlement abroad;
• etc.

Exactly how long is ‘continuous’ is defined by case law. Case law has two interpretations here:

• either judges that ‘continuous’ means that it is reasonably unpredictable at the time of assessment when the impossibility will cease or cannot be predicted;
• either ‘ continuous’ is interpreted in the sense that, at the time of the assessment, it must be reasonably certain that the impossibility will last for a sufficiently long time to justify (temporary) guardianship.

In conclusion, it can thus be said that the ‘impossibility’ of exercising parental authority does not equal its dysfunction. If a parent is not in ‘impossibility’, he is obliged to exercise parental authority. In addition, minor facts of ‘impossibility’ will not automatically trigger guardianship. The facts must occur for a sufficient period of time before guardianship will open.