Provisional text

OPINION OF ADVOCATE GENERAL

EMILIOU

delivered on 12 January 2023 ( )

Case C‑638/22 PPU

T.C.,

Rzecznik Praw Dziecka,

Prokurator Generalny

in the presence of

M.C.,

Prokurator Prokuratury Okręgowej we Wrocławiu

(Request for a preliminary ruling from the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw, Poland))

(Reference for a preliminary ruling – Judicial cooperation in civil matters – Matrimonial matters and matters of parental responsibility – International child abduction – 1980 Hague Convention – Articles 11 to 13 – Regulation (EC) No 2201/2003 – Article 11 – The need for speed in return procedures – Suspension of the enforcement of a final return decision, granted by operation of law, at the request of an authorised public entity, to allow that entity to lodge an appeal on a point of law and its examination by the court having jurisdiction – Incompatibility with EU law)





I. Introduction

1. Child abduction cases are unquestionably some of the most sensitive in which a court may have to adjudicate. They arise in a particularly charged emotional and legal context, in which the mutual resentment of the parents, their feelings towards their child or children and the fundamental rights of both sides – which revolve around the best interests of the child or children – are intertwined.

2. The procedure established, in that regard, by the Convention on the Civil Aspects of International Child Abduction, concluded at the Hague on 25 October 1980 (‘the 1980 Hague Convention’) and supplemented, in the European Union, by certain provisions of Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility ( ) (‘the Brussels IIa Regulation’), which seeks to ensure the child’s prompt return to their habitual residence, is already the subject of a wealth of case-law of the Court of Justice and of the European Court of Human Rights (‘the ECtHR’). However, its implementation remains controversial, at the very least in certain States.

3. This request for a preliminary ruling, made by the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw, Poland), asks the Court of Justice to consider the obligation, which stems from those instruments, on the Member States of the European Union to make provision for expeditious procedures for dealing with applications for return. More specifically, that national court seeks to ascertain whether, in accordance with the aforementioned instruments, a Member State may provide, in such matters, in addition to proceedings before two ordinary levels of jurisdiction, for the possibility of an appeal on a point of law which, at the unreasoned request of one of the public entities authorised to lodge such an appeal, suspends the enforcement of a final return decision. In this Opinion, I will explain why that cannot be the case.

II. Legal context

A. The 1980 Hague Convention

4. Under Article 1(a) of the 1980 Hague Convention, the object of that convention is, inter alia, ‘to secure the prompt return of children wrongfully removed to or retained in any Contracting State. …’

5. Article 2 of that convention provides that Contracting States ‘shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available.’

6. Article 11 of the Convention states:

‘The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.

If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. …’

7. Under Article 12 of that same convention:

‘Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

…’

8. Article 13 of the 1980 Hague Convention provides:

‘Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:

…

(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

…’

B. The Brussels IIa Regulation

9. Article 11 of the Brussels IIa Regulation, which is entitled ‘Return of the child’, provides:

‘1. Where a person … having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the [1980 Hague Convention], in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply.

…

3. A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law.

Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged.

…’

C. Polish law

10. Article 5191(21) of the Kodeks postępowania cywilnego (Code of Civil Procedure), as amended by the ustawa o wykonywaniu niektórych czynności organu centralnego w sprawach rodzinnych z zakresu obrotu prawnego na podstawie prawa Unii Europejskiej i umów międzynarodowyc (Law governing certain activities of the central authority in family law matters on the basis of EU law and international conventions) of 26 January 2018 (Dz. U. of 2018, item 416, ‘the 2018 Law’), provides:

‘An appeal on a point of law is also available in proceedings concerning the removal of a person subject to parental responsibility or custody conducted under the 1980 Hague Convention.’

11. Under Article 5191(22) of the Code of Civil Procedure, again as amended by the 2018 Law:

‘In the cases referred to in subparagraph 21, the Prokurator Generalny (Public Prosecutor General), the Rzecznik Praw Dziecka (Commissioner for Children’s Rights) and the Rzecznik Praw Obywatelskich (Ombudsman) may also lodge an appeal on a point of law within four months of the date on which the decision became final.’

12. The ustawa z dnia 7 kwietnia 2022 r. o zmianie ustawy Kodeks postępowania cywilnego (Law of 7 April 2022 amending the Code of Civil Procedure) (Dz. U. of 2022, item 1098, ‘the 2022 Law’), which entered into force on 24 June 2022, inserted into the Code of Civil Procedure Article 3881, which provides:

‘1. In cases concerning the removal of a person subject to parental responsibility or custody brought under the [1980 Hague Convention], at the request of a person referred to in Article 5191(22) made to the [Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw)] within a period not exceeding two weeks from the date on which the order for the removal of a person subject to parental responsibility or custody becomes final, the enforcement of that order shall be suspended by operation of law.

2. The suspension of the enforcement of the order referred to in paragraph 1 shall cease if the person referred to in Article 5191(22) does not lodge an appeal on a point of law within two months of the date on which that order became final.

3. Where an appeal on a point of law is brought by a person referred to in Article 5191(22) within two months of the date on which the order referred to in paragraph 1 became final, the suspension of enforcement of that order shall be extended by operation of law until the conclusion of the appeal on a point of law.

4. A person who has submitted a request for the suspension of enforcement of the order as referred to in paragraph 1 may withdraw that request within two months of the date on which the order became final, unless a person referred to in Article 5191 (22) has appealed on a point of law.

5. Further to the withdrawal of a request to suspend enforcement of the order as referred to in paragraph 1, that order becomes enforceable.’

III. The dispute in the main proceedings and the question referred for a preliminary ruling

13. T.C. (the ‘father’) and M.C. (the ‘mother’), Polish nationals, are the parents of two children: N., born on 8 June 2011, and M., born on 1 January 2017 (together, the ‘children’). The family lived in Ireland for several years. The children were born there and also hold Irish nationality. In addition, both parents have permanent employment in that country, although the mother is currently on long-term sick leave.

14. In the summer of 2021, the mother went on holiday to Poland with the children, with the father’s consent. In September 2021, she informed him that she intended to remain in Poland permanently. The father never consented to the change to the children’s habitual residence nor, therefore, to their non-return to Ireland.

15. On 18 November 2021, the father applied to the Sąd Okręgowy we Wrocławiu (Regional Court, Wrocław, Poland) for the return of the children to Ireland on the basis of the 1980 Hague Convention. The mother intervened in the proceedings and contended that that application should be refused. The Prokurator Okręgowy we Wrocławiu (Regional Prosecutor, Wrocław) also intervened, but in support of the application.

16. By an order of 15 June 2022, the Sąd Okręgowy we Wrocławiu (Regional Court, Wrocław) granted the father’s application. That court found, in essence, that there had indeed been, in the present case, the ‘wrongful retention of a child’ within the meaning of the 1980 Hague Convention, and that the ground for retention provided for in point (b) of the first paragraph of Article 13 of that convention did not apply. It therefore ordered the mother to ensure the return of the children to Ireland within seven days of the date on which the order would become final.

17. The mother subsequently lodged an appeal against that order before the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw). The father and the Regional Prosecutor in Wrocław contended that that appeal should be dismissed.

18. By an order of 21 September 2022, the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw) dismissed the appeal. In essence, the court of appeal confirmed the assessment of the court of first instance, in particular as regards the non-applicability of the ground for retention provided for in point (b) of the first paragraph of Article 13 of the 1980 Hague Convention.

19. The order of the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw) became final on the day on which it was delivered, that is to say, on 21 September 2022. The order of the Sąd Okręgowy we Wrocławiu (Regional Court, Wrocław) of 15 June 2022 also became final on that date.

20. On 28 September 2022, the seven-day deadline set for the mother, in the order of 15 June 2022 of the Sąd Okręgowy we Wrocławiu (Regional Court, Wrocław), for voluntary compliance with the final return order expired, without the mother having ensured the return of the children to Ireland.

21. On 29 September 2022, with a view to obtaining the enforcement of the final return decision, the father applied to the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw) for that court to add to that order a notice of its enforceability, and requested that it send him a copy of the order together with that notice.

22. On 30 September 2022, the Commissioner for Children’s Rights submitted a request to suspend enforcement of the orders of the courts of first and second instance pursuant to Article 3881(1) of the Code of Civil Procedure. On 5 October 2022, the Public Prosecutor General made the same request.

23. In those circumstances, the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘[Do] Article 11(3) of [the Brussels IIa Regulation] and Article 22, Article 24, Article 27(6) and Article 28(1) and (2) of [the Brussels IIb Regulation], read in conjunction with Article 47 of the [Charter of Fundamental Rights of the European Union (‘the Charter’)], preclude the application of a provision of national law under which, in cases involving the removal of a person subject to parental responsibility or custody conducted under the [1980 Hague Convention], the enforcement of an order for the removal of a person subject to personal responsibility or custody is suspended by operation of law where the [Public Prosecutor General], the [Commissioner for Children’s Rights] or the [Ombudsman] submits a request to that effect to the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw) within a period not exceeding two weeks from the day on which the order becomes final?’

IV. Procedure before the Court

24. The referring court has requested that the present reference for a preliminary ruling be dealt with under the urgent preliminary ruling procedure provided for in Article 107 of the Rules of Procedure of the Court of Justice.

25. In support of that request, that court states that, given that the children have already been in Poland for more than a year, further prolonging that unstable situation by additional months of proceedings would risk, first, seriously harming the relationship between the children and the father and, second, affecting their wellbeing and, in particular, complicating their potential return to Ireland and their reintegration in that State.

26. In the light of those factors, the Third Chamber decided, on 26 October 2022, to grant that request.

27. The father, the Commissioner for Children’s Rights, the Public Prosecutor General, the mother, the Polish Government and the European Commission lodged written observations before the Court. The father, the Public Prosecutor General, the mother, the Polish, Belgian, French and Netherlands Governments and the Commission were represented at the hearing that was held on 8 December 2022.

V. Analysis

28. It is worth recalling, as a preliminary point, that the 1980 Hague Convention, to which all the Member States are parties, ( ) is intended to respond, in civil terms, to ‘international child abductions’ or, more specifically, to the ‘wrongful removal or retention’ of children. Those expressions cover situations in which a minor is ‘removed’, generally by one of his or her parents, from the Contracting State in which he or she is habitually resident to another Contracting State, or is in fact ‘retained’ in the second State, in breach of the rights of custody granted under the law of the first State, in particular where, under that law, such removal or retention should have been – but was not – authorised by the other parent. ( )

29. Starting from the assumption that, as a general rule, such a course of action is seriously prejudicial to the interests of the abducted child – who is thus removed from what was their environment prior to the abduction and, quite often, denied contact with their other parent – and that, in principle, it is in their best interests to restore, as soon as possible, the ‘status quo ante’ and the continuity of the conditions in which the child lives and develops, ( ) that convention provides for a specific procedure, the purpose of which is to secure the prompt return of the child to the State of their habitual residence.

30. Where an ‘application for return’ is submitted on the basis of the 1980 Hague Convention – generally by the parent left behind – to a competent authority of the State in which the child was abducted (the requested State), that convention lays down, in Article 12 thereof, the principle that that authority must order the ‘return’ of that child ‘forthwith’ to the State of his or her habitual residence. However, the authority may, exceptionally, not order the return of the child in the restrictive list of situations set out in the Convention, in which the restoration of the ‘status quo ante’ would not be in the child’s interest. That is the case, in particular, in accordance with point (b) of the first paragraph of Article 13 of that same convention, where there is a ‘grave risk’ that his or her return would expose the child to physical or psychological harm, or otherwise place the child in an intolerable situation.

31. When, as in the case in the main proceedings, children are abducted within the European Union, the rules of the 1980 Hague Convention are supplemented by the provisions of Article 11 of the Brussels IIa Regulation – or, now, in the case of applications for return made after 1 August 2022, by Articles 22 to 29 of the Brussels IIb Regulation. ( ) In essence, those regulations strengthen, in the relations between Member States, the principle that the child must be returned forthwith, as provided for in Article 12 of that Convention, inter alia by placing tighter restrictions than those laid down in the Convention on the use of the grounds for retention provided for in Article 13 of the Convention.

32. Having recalled those general points, as I stated in the introduction to this Opinion, this case concerns, specifically, the legal remedies available, in Polish law, for the examination of applications for the return of children and, therefore, for the implementation of the procedure described above. At this preliminary stage of my analysis, I also consider it worthwhile to comment briefly on the relevant aspects of those remedies.

33. In that regard, it is apparent from the decision to refer the matter and from the observations submitted to the Court that an application for return made to the Polish authorities on the basis of the 1980 Hague Convention, particularly in a case of abduction between two Member States, in which the Brussels IIa and Brussels IIb Regulations supplement that convention, may see the involvement of two ordinary courts.

34. First of all, the application for return is examined by one of the regional courts having jurisdiction. Next, the parties and any interveners may lodge an appeal against the return – or non-return – decision given at the end of those first-instance proceedings. Where appropriate, the case is then reviewed by the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw), which has exclusive jurisdiction in such matters. ( )

35. The appeal judgment is deemed to be final on the day on which it is delivered. On that same day, it usually becomes enforceable within the domestic legal order. The same goes for the decision given at first instance, if it is upheld. If the return of the child is ordered, it may, in principle, subject to the satisfaction of certain formal requirements, ( ) be implemented by the competent authorities.

36. However, by adopting the 2018 Law, the Polish legislature provided for the possibility – which did not previously exist – of lodging an appeal on a point of law before the Sąd Najwyższy (Supreme Court, Poland) against a return decision. ( ) That extraordinary appeal is not, however, available to the parents of the removed child or children. Only three public entities – namely, the Public Prosecutor General, the Commissioner for Children’s Rights and the Ombudsman – are authorised to appeal on a point of law, regardless of whether or not they intervened in the proceedings, within four months from the date on which the return decision in question became final. ( )

37. The lodging of an appeal on a point of law does not, generally speaking, have suspensory effect in Polish law. Pursuant to a general provision of the Code of Civil Procedure (Article 388(1) of that code), the parties may, however, request that the court of appeal which gave the final decision on appeal suspend the enforcement of that decision until the conclusion of the appeal on a point of law, where implementation of the decision might cause irreparable harm to one party; the assessment of whether that condition is satisfied and, thus, whether such a suspension should be granted are subject to the consideration of that court.

38. Whilst, between 2018 and 2022, those general rules also applied to return decisions, the Polish legislature introduced, by the 2022 Law, a special provision specifically concerning, with effect from 24 June 2022, ( ) this category of decisions.

39. Under the new Article 3881(1) of the Code of Civil Procedure, the enforcement of a final return decision is to be suspended by operation of law where one of the public entities authorised to lodge an appeal on a point of law against such a decision submits a request to that effect to the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw) within two weeks from the date on which that decision became final. ( ) Contrary to the provisions of Article 388 of the Code of Civil Procedure, such a request does not have to be reasoned or assessed by that court. Where such a request is made, the enforcement of the return decision is suspended by operation of law for two months from the date on which that decision became final. If the entity which requested the suspension does not lodge an appeal on a point of law within that period, the suspension ceases. ( ) However, if such an appeal is lodged, that suspension is extended until the conclusion of the appeal on a point of law. ( )

40. In accordance with those procedural arrangements, in the case in the main proceedings, the application for the children’s return submitted by the father was examined at first instance and then, on appeal by the mother, by the referring court. Both courts concerned granted that application. The orders made by those courts became final on the day on which the second order was delivered. However, the Public Prosecutor General and the Commissioner for Children’s Rights submitted to the referring court, at the petition of the mother, requests for the suspension of their enforcement, on the basis of Article 3881(1) of the Code of Civil Procedure. Those two entities subsequently lodged appeals on points of law within the statutory period. Those requests for suspension should, in principle, by operation of law, prevent the implementation of the final decision ordering the children’s return for the entire duration of the proceedings before the Sąd Najwyższy (Supreme Court).

41. The referring court doubts that such an outcome is compatible with the 1980 Hague Convention and with the Brussels IIa and Brussels IIb Regulations, or with the right to an effective remedy guaranteed in Article 47 of the Charter. I am of the same view, as I will explain in detail in the following points (Section B). Before doing so, I will briefly consider the question of admissibility (Section A).

A. Admissibility

42. In their respective observations, the Public Prosecutor General and the mother plead that the question submitted by the referring court is inadmissible, arguing that it is hypothetical. In that regard, they claim that there is no ‘dispute’ or ‘proceedings’ currently pending before that court, in the context of which it would be called upon to ‘give [a] judgment’, within the meaning of Article 267 TFEU, that could take into consideration any preliminary ruling from the Court. ( )

43. I, like the father and the Commission, consider that the question referred is indeed admissible, and that that plea must therefore be rejected.

44. In that regard, I would note, in the first place, that that question is related to a judicial return procedure which took place, inter alia, before the referring court. It is true, as the mother points out, that that court submitted the question after making its order of 21 September 2022, ( ) which finally closed that procedure as to the substance. However, the referring court’s questions relate not to the substance of the application for return but to the enforceability of the decision granting that application, upon which that same court still has to rule, given, on the one hand, the father’s application that it certify that enforceability ( ) and, on the other hand, the requests submitted by the Public Prosecutor General and the Commissioner for Children’s Rights seeking, conversely, the suspension of enforcement.

45. I recall that the Court has given a broad interpretation to the words ‘give judgment’ used in Article 267 TFEU. ( ) Although the judicial certification of the enforceability of a return decision takes place only after that decision has been ‘given’, the fact remains that, as the father has explained, under Polish law, that formality is essential in order to be able to apply subsequently to the competent authorities for its enforcement. Accordingly, from a functional perspective, such certification appears to be the last stage of the earlier judicial procedure, which is necessary to ensure the practical effectiveness of the return decision. ( )

46. I would observe, in the second place, that, even if the certification of the enforceability of the return decision were to be considered in isolation, there can be no doubt that the referring court is called upon, in that context, to ‘give judgment’, for the purposes of Article 267 TFEU. In that regard, the father explained, at the hearing, without being contradicted, that such certification – for which that court is competent, as both the mother and the Public Prosecutor General acknowledged at the hearing ( ) – is, in itself, a judicial procedure, provided for in Polish law. The ‘notice’ of enforceability takes the form of a special order, issued by that court and annexed to the return order, requiring the competent authorities to enforce the latter order. ( ) Furthermore, as the father claims, it will be readily apparent to everyone – unless an excessively formalistic approach is adopted – that the clear contradiction between the application made by the father, on the one hand, and the requests submitted by the Public Prosecutor General and the Commissioner for Children’s Rights, on the other, illustrates the existence, as between those parties, of a ‘dispute’ concerning that issue, which the referring court must ‘settle’ in the context of that procedure.

47. The Public Prosecutor General’s argument that those different applications and requests do not require any examination on the part of the referring court because, under Article 3881 of the Code of Civil Procedure, the suspension takes effect by operation of law, resulting in the automatic rejection of the father’s application, is irrelevant. I would point out that the question submitted by that court concerns, in essence, precisely whether it is compatible with EU law for such a suspension to be obtainable by operation of law if a request is made, without the need for and proportionality of that measure being the subject of judicial review. That argument is therefore related to the substance of that question and cannot, for that reason, render the question inadmissible. ( )

48. In those circumstances, an answer from the Court to the question referred will not only be available for consideration by the referring court in the main proceedings, but also in fact appears, as the father claims, ‘necessary’ in order for that court to settle the dispute concerning the enforceability of the return decision. If the Court finds that EU law precludes a provision such as Article 3881 of the Code of Civil Procedure, the referring court will have to consider the requests for suspension to be null and void and grant the father’s application. In the opposite scenario, that court will have to declare enforcement of that decision and reject the father’s application.

49. Having made that clear, the Public Prosecutor General further argues that the question referred for a preliminary ruling is inadmissible in so far as it concerns the interpretation of the Brussels IIb Regulation, since that regulation does not apply to the facts of the case in the main proceedings.

50. It is true that only the Brussels IIa Regulation is applicable ratione temporis to that case ( ) – a fact of which, moreover, the referring court is aware. The Court cannot therefore, in view of the inherent logic of the preliminary ruling procedure, rule directly, in the present case, on the interpretation of the Brussels IIb Regulation. However, this problem requires simply that the question referred for a preliminary ruling is reworded such that its scope is limited to the first instrument. That being so, in the analysis of that question, account may be taken of the Brussels IIb Regulation inasmuch as it provides context. ( )

B. Substance

51. By its question, the referring court asks, in essence, whether, first, Article 11(3) of the Brussels IIa Regulation, read in conjunction with Articles 2 and 11 of the 1980 Hague Convention, and, second, Articles 7 and 47 of the Charter preclude national legislation, such as Article 3881 of the Code of Civil Procedure, which suspends by operation of law, at the unreasoned request of certain authorised public entities, the enforcement of a final return decision, issued on conclusion of proceedings before two ordinary courts, for an initial period of two months to allow those entities to lodge an appeal on a point of law and, as the case may be, for the entire duration of that appeal.

52. As the mother, the Public Prosecutor General and the Polish Government have been keen to stress, the 1980 Hague Convention and the Brussels IIa Regulation do not unify the procedural rules applicable to applications for return based on that convention. Those instruments do not contain, in particular, any provisions relating to the potential legal remedies available against a return decision given by a court of the requested Member State, to when such a decision becomes enforceable or to the suspensory effect of such a remedy on the enforcement of that decision. All those matters are left to the procedural law of the requested Member State.

53. It thus falls within the competence of each Member State to lay down such procedural rules. However, those instruments, in addition to the Treaties, the Charter and the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 (‘ECHR’), do establish certain obligations, which are detailed in the following sections, with which those States must comply when exercising that competence, ( ) which is not therefore unlimited but, on the contrary, restricted.

54. I agree with the father, the Belgian, French and Netherlands Governments and the Commission that, precisely, in adopting Article 3881 of the Code of Civil Procedure, the Polish legislature exceeded the limits of its competence. By that provision, that legislature rendered the return procedure ineffective (Section 1). In so doing, it also restricted the father’s fundamental right to respect for family life and his fundamental right to an effective remedy (Section 2), without such a restriction and the negative consequences which it entails being justified (Section 3).

1. The effectiveness of the return procedure

55. As I have already mentioned, the return procedure, as provided for in the 1980 Hague Convention and supplemented by the Brussels IIa Regulation, pursues a simple objective in cases of child abduction: to secure the ‘prompt’ ( ) return – or, in other words, return ‘without delay’ ( ) – of the child to the State of their habitual residence.

56. Time is a crucial factor in such cases. Generally speaking, the sooner the disruption triggered by the change in environment is brought to an end, the less traumatic that disruption will be for the child. Conversely, the more time the child has had to settle in their new surroundings, the more difficult it will be for them to return to their State of origin. ( ) The relationship between the child and the parent left behind is also time dependent. The intensity of that relationship recedes as the months spent with no contact pass by. In addition to those considerations, there is also the fact that the younger the child concerned, the greater the speed at which his or her intellectual and psychological structure develops, and the more the passage of time is liable to affect that child and to harm that relationship. ( )

57. The objective of the ‘prompt’ return, or return ‘without delay’, of the child quite clearly means that speed is of the essence, a point that is made in various provisions of the 1980 Hague Convention and of the Brussels IIa Regulation. In particular, the second sentence of Article 2 of that convention requires that, when dealing with an application for return, the authorities of the Member States use their ‘most expeditious procedures’, and the first paragraph of Article 11 of the Convention requires them to ‘act expeditiously in proceedings for the return of children’. The first subparagraph of Article 11(3) of that regulation restates, in essence, the same obligations, requiring the courts of those States, when an application for return is made to them, to ‘act expeditiously in proceedings on the application, using the most expeditious procedures available in national law’.

58. Furthermore, concrete expression is given to that requirement of speed in the second paragraph of Article 11 of the 1980 Hague Convention, from which it is apparent that the national authorities are, ideally, ( ) to decide on an application for return within six weeks from the date of commencement of the proceedings. Furthermore, as the Commission points out, the EU legislature made that time limit mandatory for child abductions within the European Union. Under the second subparagraph of Article 11(3) of the Brussels IIa Regulation, a court to which such an application is made must, ‘except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged’.

59. Moreover, while it is true, as the Public Prosecutor General and the Polish Government argue, that those different obligations concern the adoption of a return decision and not the enforcement of such a decision, the national authorities are bound by the same requirement of effectiveness and speed in that regard. If a return decision issued with all due speed could then prove to be ineffectual, or be enforced only belatedly by those authorities, the obligations in question would be deprived of any useful effect. ( )

60. In that context, the legislatures of the Member States must, pursuant to Article 2 of the 1980 Hague Convention ( ) and in accordance with the principle of sincere cooperation enshrined in Article 4(3) TEU, ( ) provide for a regulatory framework capable of ensuring the speed and the effectiveness of the return procedure and, thus, of guaranteeing the achievement of the objective pursued by that procedure, allowing the requested authorities to deal with applications for return, and to enforce the corresponding decisions, with all due speed.

61. However, like the father, the Belgian, French and Netherlands Governments and the Commission, I consider that, in adopting Article 3881 of the Code of Civil Procedure, the Polish legislature did exactly the opposite.

62. I note, in that regard, that, under Polish law, an application for return may give rise to proceedings before two ordinary courts, with any appeal against the decision given at first instance having suspensory effect. In that context, the Polish legislature was indeed at liberty to make provision, in addition, for the possibility of an appeal on a point of law – such a possibility exists moreover in other Member States. However, by attaching to that extraordinary appeal a mechanism suspending by operation of law the enforcement of the final decision under appeal, such as that provided for in Article 3881, and failing to take sufficient measures to ensure that the appeal is expeditious, that legislature undermined systemically, ( ) the speed and the effectiveness of the return procedure.

63. In the first place, I would recall that as soon as one of the public entities authorised to lodge an appeal on a point of law – the Public Prosecutor General, the Commissioner for Children’s Rights or the Ombudsman – has submitted a request on the basis of Article 3881 of the Code of Civil Procedure, it has, by operation of law, an initial two-month standstill period, calculated from the day of delivery of the final decision, in which to lodge such an appeal, should it so wish. ( ) Although that period seems to be, as the mother, the Public Prosecutor General, the Commissioner for Children’s Rights and the Polish Government have argued, shorter than that generally provided for, in Polish law, to lodge such an appeal – which is, apparently, six months – its length is nonetheless remarkable in the context of a return procedure. As a point of reference, that period – which, I repeat, is allowed for the preparation of any appeal – is longer than the six weeks within which the courts must usually decide on an application for return.

64. Furthermore, I recall that, if an appeal on a point of law is lodged within that same period, the suspensory effect is then extended until the conclusion of the proceedings before the Sąd Najwyższy (Supreme Court). In addition, as the Polish Government acknowledged at the hearing, a time limit for the examination of such an appeal is not provided for in national law. That government likewise stated at the hearing that the procedures before that court last, on average, eleven months, a period of time far longer than the six weeks provided for in the second paragraph of Article 11 of the 1980 Hague Convention and in Article 11(3) of the Brussels IIa Regulation. ( ) In addition, that court does not appear to have at its disposal, in its internal rules, mechanisms which require it to decide on such an appeal expeditiously, such as the urgent preliminary ruling procedure used by the Court in this case. ( )

65. In the second place, contrary to what is suggested by the mother, the Public Prosecutor General and the Polish Government, the mechanism at issue is likely to affect not just a few return cases brought before the Polish courts, but a good many of them.

66. In that regard, although cassation proceedings are limited, in Poland, to questions of law, I do however note that that includes the alleged ‘misapplication of the law’ ( ) by the court of appeal, including the incorrect application of the statutory grounds for retention, provided for in Article 13 of the 1980 Hague Convention. Since those grounds are frequently invoked by the abducting parent to oppose the return of the child and must, as appropriate, be examined by that court, this would mean that almost all return decisions could be open to such an appeal. Moreover, at the hearing, the Public Prosecutor General stated that it had raised precisely that ground in its appeal on a point of law in the case in the main proceedings. ( )

67. Furthermore, it is true that the fact that the Polish legislature restricted the group of persons authorised to lodge such an appeal on a point of law to the Public Prosecutor General, the Ombudsman and the Commissioner for Children’s Rights does prevent abusive appeals from being lodged by the abducting parent, purely as a stalling tactic, with a view to frustrating the effectiveness of the provisions of the 1980 Hague Convention and of the Brussels IIa Regulation. ( ) However, the fact remains that, first, the number of those entities increases the chances of such an appeal being lodged and, second, those entities could themselves, as the case may be at the petition of the parent in question, abuse that procedure. I will return to this point. ( )

68. On the latter point, the mother, the Public Prosecutor General and the Polish Government stated in response that, in practice, the number of appeals on points of law lodged by the authorised entities in international child abduction cases is low. However, even if that is the case, the fact remains that the mere possibility of such a suspensory appeal raises serious doubts as to the capacity of the Polish authorities, in the case of abduction of a child to that Member State, to secure the child’s prompt return. ( )

69. In the third place, as the referring court observes, the contradiction between such a mechanism of automatic suspension and the spirit of the rules of the 1980 Hague Convention and of the Brussels IIa Regulation is all the more blatant since that mechanism is provided for solely in respect of applications for return based on that convention. Thus, rather than having provided, for the processing of such applications, for the ‘most expeditious procedures available in national law’, as required by the first subparagraph of Article 11(3) of that regulation, the Polish legislature appears, on the contrary, to have surrendered such applications to one of the slowest procedures available in that law.

70. In the last place, one other aspect, which has attracted less debate before the Court, does deserve to be mentioned all the same. It is apparent from the decision to refer the matter that, on conclusion of the appeal on a point of law, the public entities concerned still have, if the return decision is upheld, a further remedy against such a decision: they can lodge an ‘extraordinary appeal’, as provided for in Article 89 of the Ustawa z dnia 8 grudnia 2017 r. o Sądzie Najwyższym (Law of 8 December 2017 on the Supreme Court), ( ) which is submitted for examination to the Izba Kontroli Nadzwyczajnej i Spraw Publicznych Sądu Najwyższego (Extraordinary Review and Public Affairs Chamber of the Supreme Court). Such an appeal may be lodged within one year from the date of the dismissal of the appeal on a point of law, and, once again, it has suspensory effect. ( )

71. It is true, as the Public Prosecutor General and the Polish Government have argued, that the bringing of such an ‘extraordinary appeal’ is still hypothetical at the stage of the case in the main proceedings. Furthermore, according to them, such an ‘appeal’ could relate only to limited grounds, ( ) different from those previously examined in the context of the appeal on a point of law, and that legal remedy has never yet been used in child abduction cases. That being said, in my view, the mere existence of that additional remedy confirms, viewed in relation to the national procedural system as a whole, the impact that a provision such as Article 3881 of the Code of Civil Procedure can have on the speed and the effectiveness of the return procedure.

2. The father’s rights to respect for his family life and to an effective remedy

72. In my view, a provision such as Article 3881 of the Code of Civil Procedure also seriously restricts the fundamental freedom of a parent, such as the father in the present case, to respect for his family life, as well as his right to an effective remedy, which are guaranteed, on the one hand, in Article 7 of the Charter and, on the other hand, in Article 47 of that instrument. ( ) I would also point out that, since those rights correspond to those provided for, respectively, in Articles 8 and 6 ECHR, they must be interpreted in the light of the relevant case-law of the ECtHR. ( )

73. In that regard, it follows from that case-law that the right of a parent, in a case of international child abduction, to apply for the return of the child falls within the ambit of the right to respect for his or her family life. ( ) In that context, the ECtHR has repeatedly held that, in such matters, Member States have positive obligations under Article 8 ECHR, obligations which that court interprets in the light of the 1980 Hague Convention. It falls to the Member States, inter alia, to ensure that they have adequate and effective means at their disposal, including an appropriate regulatory framework, to ensure that the right of the parent left behind to the return of the child is respected. According to the ECtHR, the adequacy of those means is assessed having regard to their speed, in view of the consequences that the passage of time may have in such cases. ( )

74. Thus, the Member States are obliged, first, under Article 8 ECHR, to provide for a regulatory framework which guarantees that a decision is made on applications for return within a ‘reasonable time’, across all courts and tribunals, with ‘special diligence’ being required of the national authorities in matters involving international child abduction. Those authorities are also bound by that obligation on the basis of the right to a fair trial provided for in Article 6 of that convention. ( )

75. In addition, it follows from the case-law of the ECtHR that the fact that a Member State allows numerous appeals, appeals on points of law and other ‘extraordinary appeals’ against return decisions, as the case may be with suspensory effect, constitutes, in that regard, a systemic problem, since those multiple remedies are liable to extend the examination of any application for return unreasonably – if not border on a denial of justice. ( )

76. Secondly, Member States are also obliged under Articles 6 and 8 ECHR, where a final return decision is given, to take all appropriate and necessary steps to facilitate the enforcement of that decision. ( ) As the father and the Commission claim, the rights of the parent left behind to respect for family life and to an effective remedy would, on the contrary, become illusory if certain public authorities were able, without having to provide an explanation or even, ultimately, to lodge an appeal on a point of law, to have the enforcement of such a decision suspended by operation of law, with the result that that decision remains ineffective, to the detriment of that parent, for a significant period of time. ( )

3. The lack of justification for such a mechanism

77. That said, the mother, the Public Prosecutor General, the Commissioner for Children’s Rights and the Polish Government argue that a mechanism such as that provided for in Article 3881 of the Code of Civil Procedure has the objective of guaranteeing, and is necessary to guarantee, in accordance with Article 47 of the Charter, effective legal protection for the child, whose best interests, which are protected inter alia by Article 24 of the Charter, is a paramount consideration when interpreting and applying the 1980 Hague Convention and the Brussels IIa Regulation. ( )

78. Whilst recognising that the latter instruments were drawn up specifically with the aim of serving the best interests of the removed child and that it is, as a general rule, in their best interest to return as soon as possible to the State of their habitual residence, ( ) those parties and interested persons make the point that that is not always the case. In particular, where the abducting parent alleges – as the mother does in this case – that there is a ‘grave risk’ that the child’s return would expose him or her to physical or psychological harm or otherwise place him or her in an intolerable situation, within the meaning of point (b) of the first paragraph of Article 13 of the 1980 Hague Convention, those allegations should, as they concern the wellbeing and the dignity of the child, be the subject of an in-depth judicial review, as required by the ECtHR, and should, to that end, be open to an appeal on a point of law, where necessary at the expense of the speed of the return procedure.

79. In that context, the suspension by operation of law of the enforcement of the final return decision, as provided for in Article 3881 of the Code of Civil Procedure, preventing the child’s forcible return to his or her State of origin before such an appeal is lodged and, as appropriate, examined by the Sąd Najwyższy (Supreme Court), is essential in order to ensure that the appeal on a point of law is of practical use, and to prevent the alleged ‘grave risk’ from manifesting and the child suffering irreparable harm as a result.

80. Like the father, the Belgian, French and Netherlands Governments and the Commission, I disagree with that view. Whilst the declared objective is laudable, the contested measure goes, in my view, beyond what is necessary to achieve that objective and, in addition, is disproportionate.

81. It is true that it follows from the case-law of the ECtHR that, where arguable allegations of a ‘grave risk’, within the meaning of point (b) of the first paragraph of Article 13 of the 1980 Hague Convention, are raised in the context of a return procedure, the judicial authorities are required, in the light of respect for the best interests of the child, to examine those allegations duly, so as to ensure, in every case, that the return of the child is indeed in his or her best interests or, if that is not the case, that the ground for retention laid down in that provision is applied. Accordingly, such allegations must ‘genuinely be taken into account’ by those authorities – with that examination potentially justifying, in certain cases, the six-week time limit usually imposed on them being reasonably exceeded ( ) – and lead the authorities to adopt ‘specifically’ and ‘sufficiently’ reasoned decisions in the light of the circumstances of each case. ( )

82. However, it cannot be inferred from the foregoing, as the supporters of Article 3881 of the Code of Civil Procedure do, that the same allegations of a ‘grave risk’ for the child if they are returned should necessarily be open to review in proceedings before more than one court. The judicial protection of that child against such a ‘risk’ is, in principle, already ensured, to the level required by EU law and the ECHR, by the availability of an appeal before a judicial body. ( )

83. In my view, the case in the main proceedings serves as a good example in this regard. In that case, the judicial protection of the children has already been ensured in the context of not one – as required by Articles 24 and 47 of the Charter – but two sets of proceedings. Although the appeals on points of law lodged, at the petition of the mother, by the Public Prosecutor General and the Commissioner for Children’s Rights are based, it would appear, on the lower courts’ alleged infringement of point (b) of the first paragraph of Article 13 of the 1980 Hague Convention, I note that those courts did not order the return of the children in an automatic or mechanical fashion. They appear, on the contrary, to have ‘genuinely taken into account’ the mother’s allegations as to the existence of a ‘grave risk’ to the children in the event of their return. In particular, it is established that the court of first instance heard detailed evidence in that regard – which may explain why it took seven months to give its decision – and requested inter alia an expert opinion, the findings of which it used to rule out the children being exposed to such a ‘risk’ by their return. ( ) It is also established that those same courts gave decisions which included, in that respect, a detailed statement of reasons specific to the circumstances of the case. ( )

84. It follows from the foregoing, in my opinion, that, even in respect of allegations of a ‘grave risk’ for the child in the event of his or her return, within the meaning of point (b) of the first paragraph of Article 13 of the 1980 Hague Convention, respect for the best interests of the child and his or her right to judicial protection, as enshrined in Articles 24 and 47 of the Charter, did not require the Polish legislature to introduce an appeal on a point of law against the return decisions or, a fortiori, to grant suspensory effect to that appeal by operation of law, on submission of an unreasoned request to that effect. ( ) Article 3881 of the Code of Civil Procedure therefore goes beyond what is necessary in that regard.

85. It is true that exceptional circumstances may arise in which a final return decision, adopted on conclusion of one or two sets of judicial proceedings, would expose the child concerned, if it were enforced, to physical or psychological harm (etc.), as envisaged by point (b) of the first paragraph of Article 13 of the 1980 Hague Convention. This could occur if such harm already existed when the application for return was examined but had not been brought to the attention of the court or courts involved – for example because the abducting parent had not made an allegation to that effect – or if, for an unexplained reason, the court or courts had disregarded such an allegation, in flagrant breach of the procedural obligations arising from the case-law of the ECtHR. Such a situation could likewise arise as a result of a change in circumstances that has occurred since the adoption of the return decision, from which new harm to the child ensued. ( )

86. In such situations, a mechanism suspending the enforcement of the return decision, as the case may be pending proceedings brought to erase that decision from the legal order or for a declaration that it has become obsolete, is, in my view, essential in order to protect the best interests of the child.

87. However, the mechanism provided for in Article 3881 of the Code of Civil Procedure, even if it were intended, as the Polish Government claims, for such exceptional situations, is not bound, as I have already pointed out, by any safeguard capable of ensuring that it is actually applied only in such cases.

88. I would observe, in that regard, that the suspension of the enforcement of a return decision, on the basis of that provision, is not subject to any condition, other than the formal submission of a request to that effect by one of the entities authorised to lodge an appeal on a point of law, and does not require a statement of reasons for that request. Thus, those entities are not required to adduce the slightest evidence to show that the enforcement of that decision would risk causing physical or psychological harm to the child, within the meaning of point (b) of the first paragraph of Article 13 of the 1980 Hague Convention. ( ) Such a mechanism does not therefore allow for any judicial review capable of preventing its incorrect use, or abuse, by those entities. ( ) Hypothetically speaking, as the father claims, there is nothing to prevent the three public entities in question from automatically submitting such a request in connection with every return decision given on appeal. That mechanism in fact encourages them to do so. They have nothing to lose, whereas they gain, on every occasion, the luxury of being able to examine such a decision at their leisure.

89. Nor is such a mechanism proportionate stricto sensu. It cannot be appropriately reconciled with the various rights and interests at stake. The Polish legislature has failed to maintain a ‘fair balance’ between the objective of protecting the child from any ‘grave risk’ and the speed and effectiveness of the return procedure. ( ) It has tipped the scales excessively in favour of the first objective, to the point that, in practice, the rule (return) and the exception (non-return) are reversed.

90. In that regard, the decisive impact that the suspension of a return decision for the duration of an appeal on a point of law may have on the outcome of the return procedure cannot be ignored. As I stated in point 56 of this Opinion, time is a crucial factor in such matters. The more the child has settled in the State to which they were removed, the more difficult it will be for them to return to their State of origin, and the less justified that return is. Accordingly, even if the decision against which an appeal on a point of law is lodged is ultimately upheld on conclusion of those appeal proceedings, it is likely that it will not be enforced, in the best interests of the child remaining in what will have become, in the meantime, his or her new environment. Thus, under the guise of giving stability to that child, as the supporters of Article 3881 of the Code of Civil Procedure claim, a suspension on the basis of that provision could primarily serve to consolidate the factual situation arising from the child’s wrongful removal or retention, thereby strengthening the position of the abducting parent. ( )

91. The disproportionate nature of Article 3881 of the Code of Civil Procedure is especially striking as there is another provision in Polish law which allows for the adequate protection of the child against any ‘grave risk’ of physical or psychological harm in the event of their return and strikes a balance between all the rights and interests at stake. Article 388 of the Code of Civil Procedure already allows the entities authorised to lodge an appeal on a point of law against a return decision to request the suspension of that decision, where its enforcement would be liable to cause irreparable harm to the child. Crucially, the judicial review carried out, in that regard, by the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw) guarantees that such a suspension can be secured only where the best interests of that child genuinely require it.

92. In that context, the argument put forward by the mother, the Public Prosecutor General and the Commissioner for Children’s Rights, to the effect that the Polish legislature provided for a mechanism of automatic suspension, triggered simply at the request of the entities concerned, precisely because the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw) was rejecting the majority of requests for suspension made on the basis of Article 388 of the Code of Civil Procedure, is, in my view, extremely problematic. Indeed, two possible conclusions can be drawn from that argument: either the Polish legislature was fully aware of the fact that the new Article 3881 of that code would frustrate return decisions in which there is not actually a ‘grave risk’ to the child in the event of his or her return – since, otherwise, that court would grant the corresponding requests for suspension – in breach of the obligations imposed on the Republic of Poland by international and EU law; or it considered that a member of the Polish executive and two administrative authorities were better placed than a Polish court to assess, in each case, whether such a ‘risk’ exists, without any review. In any event, such an argument cannot be accepted in a State governed by the rule of law.

4. Interim conclusion

93. In the light of the foregoing considerations, I suggest that the Court answer the question referred to the effect that, first, Article 11(3) of the Brussels IIa Regulation, read in conjunction with Articles 2 and 11 of the 1980 Hague Convention, and, second, Articles 7 and 47 of the Charter preclude national legislation which suspends by operation of law, at the unreasoned request of certain authorised public entities, the enforcement of a final return decision, issued on conclusion of proceedings before two ordinary courts, for an initial period of two months to allow those entities to lodge an appeal on a point of law and, as the case may be, for the entire duration of that appeal.

94. I would further point out – since the referring court expressly asks the Court about this point – that, assuming the Court follows my suggestion, in the case in the main proceedings, that court will have to ensure that full effect is given to the relevant provisions of EU law by refraining, of its own motion, from applying Article 3881 of the Code of Civil Procedure. ( )

95. One final point must be dealt with as a postscript. As I stated above, the Brussels IIb Regulation has been applicable to return applications since 1 August 2022. That new regulation confirmed the solutions laid down in the Brussels IIa Regulation, ( ) whilst also laying down innovative provisions intended to bolster further the effectiveness and the speed of the return procedure. In particular, Article 27(6) of the Brussels IIb Regulation provides for the possibility of declaring a return decision provisionally enforceable, notwithstanding any appeal, where this is required by the best interests of the child. In addition, recital 42 of that regulation states that Member States ‘should … consider limiting the number of appeals possible’ against such a decision. The fact that the Polish legislature adopted a provision such as Article 3881 of the Code of Civil Procedure after the entry into force of that new regulation, but before the date of its application, likewise raises, from that perspective, serious questions vis-à-vis sincere cooperation. ( )

VI. Conclusion

96. In the light of all the foregoing considerations, I suggest that the Court of Justice answer the question referred by the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw, Poland) as follows:

First, Article 11(3) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, read in conjunction with Articles 2 and 11 of the Convention on Civil Aspects of International Child Abduction, concluded in the Hague on 25 October 1980, and, second, Articles 7 and 47 of the Charter of Fundamental Rights of the European Union

are to be interpreted as:

precluding national legislation which suspends by operation of law, at the unreasoned request of certain authorised public entities, the enforcement of a final return decision, issued on conclusion of proceedings before two ordinary courts, for an initial period of two months to allow those entities to lodge an appeal on a point of law and, as the case may be, for the entire duration of that appeal.