CELEX: 62010CP0211
Language: en
Date: 2010-06-16 00:00:00
Title: View of Advocate General Sharpston delivered on 16 June 2010. # Doris Povse v Mauro Alpago. # Reference for a preliminary ruling: Oberster Gerichtshof - Austria. # Judicial cooperation in civil matters - Matrimonial matters and matters of parental responsibility - Regulation (EC) No 2201/2003 - Unlawful removal of a child - Provisional measures relating to ‘right to take parental decisions’ - Rights of custody - Judgment ordering the return of the child - Enforcement - Jurisdiction - Urgent preliminary ruling procedure. # Case C-211/10 PPU.

Provisional text
      
      VIEW OF ADVOCATE GENERAL
      ELEANOR SHARPSTON
      delivered on 16 June 2010 (1)
      
      Affaire C‑211/10 PPU
      Doris Povse
      v
      Mauro Alpago
      (Reference for a preliminary ruling from the Oberster Gerichtshof (Austria))
      (Urgent preliminary ruling procedure – Regulation (EC) No 2201/2003 – Parental responsibility held jointly by both parents – Removal of the child to another Member State in breach of a ban on leaving the territory – Judgment of the court of the first Member State withdrawing the ban and provisionally awarding decision-making power to the
         parent who removed the child – Residence of the child in the second Member State for more than one year – Judgment of the court of the first Member State ordering the return of the child to that State – Grounds capable of justifying a refusal to enforce the latter judgment in the second Member State)
      1.        A child born in Italy in 2006 to an Italian father and an Austrian mother, who were never married, is at present in Austria
         with her mother, against the wishes of the father. In the context of proceedings seeking to determine the exercise of parental
         responsibility in respect of the child, an Italian court ordered her return to Italy. The Oberster Gerichtshof (Supreme Court)
         (Austria) seeks a preliminary ruling on five questions concerning the grounds on which enforcement of that order might be
         refused.
      
       Legal background
      2.        The situation is governed, in European Union law, by Council Regulation (EC) No 2201/2003, (2) read in conjunction with the Hague Convention of 1980. (3)
      
       The Convention
      3.        In the preamble to the Convention, the signatory States declare that they are ‘[f]irmly convinced that the interests of children
         are of paramount importance in matters relating to their custody’ and state that they desire ‘to protect children internationally
         from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return
         to the State of their habitual residence, as well as to secure protection for rights of access’.
      
      4.        Under Article 3 of the Convention:
      
      ‘The removal or the retention of a child is to be considered wrongful where -
      a)       it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under
         the law of the State in which the child was habitually resident immediately before the removal or retention; and
      
      b)      at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised
         but for the removal or retention.
      
      The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial
         or administrative decision, or by reason of an agreement having legal effect under the law of that State.’ 
      
      5.        Article 12 of the Convention provides:
      
      ‘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.
      
      The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period
         of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that
         the child is now settled in its new environment.
      
      ...’
      6.        Under Article 13 of the Convention:
      
      ‘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 –
      
      a)      the person, institution or other body having the care of the person of the child was not actually exercising the custody rights
         at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
      
      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.
      
      The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects
         to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
      
      In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into
         account the information relating to the social background of the child provided by the Central Authority or other competent
         authority of the child’s habitual residence.’
      
      7.        Article 17 of the Convention provides:
      
      ‘The sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State
         shall not be a ground for refusing to return a child under this Convention, but the judicial or administrative authorities
         of the requested State may take account of the reasons for that decision in applying this Convention.’
      
      8.        Under Article 19 of the Convention:
      
      ‘A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits
         of any custody issue.’
      
       The Regulation
      9.        Several recitals in the preamble to the Regulation are relevant to the analysis of the questions raised in this reference
         for a preliminary ruling, in particular:
      
      ‘(12) The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the
         light of the best interests of the child, in particular on the criterion of proximity. This means that jurisdiction should
         lie in the first place with the Member State of the child’s habitual residence, except for certain cases of a change in the
         child’s residence or pursuant to an agreement between the holders of parental responsibility.
      
      ...
      (17)      In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this
         end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation,
         in particular Article 11. The courts of the Member State to or in which the child has been wrongfully removed or retained
         should be able to oppose his or her return in specific, duly justified cases. However, such a decision could be replaced by
         a subsequent decision by the court of the Member State of habitual residence of the child prior to the wrongful removal or
         retention. Should that judgment entail the return of the child, the return should take place without any special procedure
         being required for recognition and enforcement of that judgment in the Member State to or in which the child has been removed
         or retained.
      
      ...
      (21)      The recognition and enforcement of judgments given in a Member State should be based on the principle of mutual trust and
         the grounds for non‑recognition should be kept to the minimum required.
      
      ...
      (23)      The Tampere European Council considered in its conclusions (point 34) that judgments in the field of family litigation should
         be “automatically recognised throughout the Union without any intermediate proceedings or grounds for refusal of enforcement”.
         This is why judgments on rights of access and judgments on return that have been certified in the Member State of origin in
         accordance with the provisions of this Regulation should be recognised and enforceable in all other Member States without
         any further procedure being required. Arrangements for the enforcement of such judgments continue to be governed by national
         law.
      
      (24)      The certificate issued to facilitate enforcement of the judgment should not be subject to appeal. It should be rectified only
         where there is a material error, i.e. where it does not correctly reflect the judgment.’
      
      10.      Article 2 of the Regulation defines certain terms used therein. In particular:
      
      ‘4.      the term “judgment” shall mean a divorce, legal separation or marriage annulment, as well as a judgment relating to parental
         responsibility, pronounced by a court of a Member State, whatever the judgment may be called, including a decree, order or
         decision;
      
      ...
      11.      the term “wrongful removal or retention” shall mean a child’s removal or retention where:
      (a)      it is in breach of rights of custody acquired by judgment or by operation of law or by an agreement having legal effect under
         the law of the Member State where the child was habitually resident immediately before the removal or retention;
      
      and
      (b)      provided that, at the time of removal or retention, the rights of custody were actually exercised, either jointly or alone,
         or would have been so exercised but for the removal or retention. Custody shall be considered to be exercised jointly when,
         pursuant to a judgment or by operation of law, one holder of parental responsibility cannot decide on the child’s place of
         residence without the consent of another holder of parental responsibility.
      
      ...’.
      11.      Under Article 8 of the Regulation, and subject to the provisions of Articles 9, 10 and 12, the courts of a Member State are
         to have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at
         the time the court is seised.
      
      12.      In that regard, Article 10 of the Regulation (4) provides:
      
      ‘In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident
         immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual
         residence in another Member State and:
      
      (a)      each person, institution or other body having rights of custody has acquiesced in the removal or retention; 
      or
      (b)      the child has resided in that other Member State for a period of at least one year after the person, institution or other
         body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled
         in his or her new environment and at least one of the following conditions is met:
      
      (i)      within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child,
         no request for return has been lodged before the competent authorities of the Member State where the child has been removed
         or is being retained;
      
      (ii)      a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within
         the time limit set in paragraph (i);
      
      (iii) a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal
         or retention has been closed pursuant to Article 11(7);
      
      (iv)      a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where
         the child was habitually resident immediately before the wrongful removal or retention.’
      
      13.      Under Article 11 of the Regulation:
      
      ‘1.      Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State
         to deliver a judgment on the basis of the [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.
      
      2.      When applying Articles 12 and 13 of the [Convention], it shall be ensured that the child is given the opportunity to be heard
         during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity.
      
      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.
      
      4.      A court cannot refuse to return a child on the basis of Article 13(b) of the [Convention] if it is established that adequate
         arrangements have been made to secure the protection of the child after his or her return.
      
      5.      A court cannot refuse to return a child unless the person who requested the return of the child has been given an opportunity
         to be heard.
      
      6.      If a court has issued an order on non-return pursuant to Article 13 of the [Convention], the court must immediately either
         directly or through its central authority, transmit a copy of the court order on non-return and of the relevant documents,
         in particular a transcript of the hearings before the court, to the court with jurisdiction or central authority in the Member
         State where the child was habitually resident immediately before the wrongful removal or retention, as determined by national
         law. The court shall receive all the mentioned documents within one month of the date of the non-return order.
      
      7.      Unless the courts in the Member State where the child was habitually resident immediately before the wrongful removal or retention
         have already been seised by one of the parties, the court or central authority that receives the information mentioned in
         paragraph 6 must notify it to the parties and invite them to make submissions to the court, in accordance with national law,
         within three months of the date of notification so that the court can examine the question of custody of the child.
      
      Without prejudice to the rules on jurisdiction contained in this Regulation, the court shall close the case if no submissions
         have been received by the court within the time limit.
      
      8.      Notwithstanding a judgment of non-return pursuant to Article 13 of the [Convention], any subsequent judgment which requires
         the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with
         Section 4 of Chapter III below in order to secure the return of the child.’
      
      14.      Article 15 of the Regulation concerns the possibility of a transfer to a court better placed to hear the case. It provides:
      
      ‘1.      By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider
         that a court of another Member State, with which the child has a particular connection, would be better placed to hear the
         case, or a specific part thereof, and where this is in the best interests of the child:
      
      (a)      stay the case or the part thereof in question and invite the parties to introduce a request before the court of that other
         Member State in accordance with paragraph 4; or
      
      (b)      request a court of another Member State to assume jurisdiction in accordance with paragraph 5.
      2.      Paragraph 1 shall apply: 
      (a)      upon application from a party; or
      (b)      of the court’s own motion; or
      (c)      upon application from a court of another Member State with which the child has a particular connection, in accordance with
         paragraph 3.
      
      A transfer made of the court’s own motion or by application of a court of another Member State must be accepted by at least
         one of the parties.
      
      3.      The child shall be considered to have a particular connection to a Member State as mentioned in paragraph 1, if that Member
         State:
      
      (a)      has become the habitual residence of the child after the court referred to in paragraph 1 was seised; or
      (b)      is the former habitual residence of the child; or
      (c)      is the place of the child’s nationality; or
      (d)      is the habitual residence of a holder of parental responsibility; or
      (e)      is the place where property of the child is located and the case concerns measures for the protection of the child relating
         to the administration, conservation or disposal of this property.
      
      4.      The court of the Member State having jurisdiction as to the substance of the matter shall set a time limit by which the courts
         of that other Member State shall be seised in accordance with paragraph 1.
      
      If the courts are not seised by that time, the court which has been seised shall continue to exercise jurisdiction in accordance
         with Articles 8 to 14.
      
      5.      The courts of that other Member State may, where due to the specific circumstances of the case, this is in the best interests
         of the child, accept jurisdiction within six weeks of their seisure in accordance with paragraph 1(a) or 1(b). In this case,
         the court first seised shall decline jurisdiction. Otherwise, the court first seised shall continue to exercise jurisdiction
         in accordance with Articles 8 to 14.
      
      6.      The courts shall cooperate for the purposes of this Article, either directly or through the central authorities designated
         pursuant to Article 53.’ (5)
      
      15.      Chapter III of the Regulation is entitled ‘Recognition and Enforcement’. Section 1 thereof concerns recognition. In that section,
         Article 23 lists the grounds of non-recognition for judgments relating to parental responsibility. It provides:
      
      ‘A judgment relating to parental responsibility shall not be recognised:
      (a)      if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought taking
         into account the best interests of the child;
      
      (b)      if it was given, except in case of urgency, without the child having been given an opportunity to be heard, in violation of
         fundamental principles of procedure of the Member State in which recognition is sought;
      
      (c)      where it was given in default of appearance if the person in default was not served with the document which instituted the
         proceedings or with an equivalent document in sufficient time and in such a way as to enable that person to arrange for his
         or her defence unless it is determined that such person has accepted the judgment unequivocally;
      
      (d)      on the request of any person claiming that the judgment infringes his or her parental responsibility, if it was given without
         such person having been given an opportunity to be heard;
      
      (e)      if it is irreconcilable with a later judgment relating to parental responsibility given in the Member State in which recognition
         is sought;
      
      (f)      if it is irreconcilable with a later judgment relating to parental responsibility given in another Member State or in the
         non-Member State of the habitual residence of the child provided that the later judgment fulfils the conditions necessary
         for its recognition in the Member State in which recognition is sought;
      
      or
      (g)      if the procedure laid down in Article 56 has not been complied with.’ (6)
      
      16.      Article 24 of Section 1 provides:
      
      ‘The jurisdiction of the court of the Member State of origin may not be reviewed. The test of public policy referred to in
         ... Article 23(a) may not be applied to the rules relating to jurisdiction set out in Articles [8] to 14.’ (7)
      
      17.      Section 4 of Chapter III, entitled ‘Enforceability of certain judgments concerning rights of access and of certain judgments
         which require the return of the child’, comprises Articles 40 to 45. Article 40, entitled ‘Scope’, provides:
      
      ‘1.      This Section shall apply to:
      …
      (b)      the return of a child entailed by a judgment given pursuant to Article 11(8).
      2.      The provisions of this Section shall not prevent a holder of parental responsibility from seeking recognition and enforcement
         of a judgment in accordance with the provisions in Sections 1 and 2 of this Chapter.’
      
      18.      Under Article 42, entitled ‘Return of the child’:
      
      ‘1.      The return of a child referred to in Article 40(1)(b) entailed by an enforceable judgment given in a Member State shall be
         recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility
         of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph
         2.
      
      Even if national law does not provide for enforceability by operation of law, notwithstanding any appeal, of a judgment requiring
         the return of the child mentioned in Article 11(8), the court of origin may declare the judgment enforceable.
      
      2.      The judge of origin who delivered the judgment referred to in Article 40(1)(b) shall issue the certificate referred to in
         paragraph 1 only if:
      
      (a)      the child was given an opportunity to be heard, unless a hearing was considered inappropriate having regard to his or her
         age or degree of maturity;
      
      (b)      the parties were given an opportunity to be heard; and
      (c)      the court has taken into account in issuing its judgment the reasons for and evidence underlying the order issued pursuant
         to Article 13 of the [Convention].
      
      In the event that the court or any other authority takes measures to ensure the protection of the child after its return to
         the State of habitual residence, the certificate shall contain details of such measures.
      
      The judge of origin shall of his or her own motion issue that certificate using the standard form in Annex IV (certificate
         concerning return of the child(ren)).
      
      The certificate shall be completed in the language of the judgment.’
      19.      The information which must be certified in that regard includes, as set out in point 13 of Annex IV, the following attestation:
         
      
      ‘The judgment entails the return of the children and the court has taken into account in issuing its judgment the reasons
         for and evidence underlying the decision issued pursuant to Article 13 of the [Convention].’
      
      20.      Under Article 43 of the Regulation:
      
      ‘1.      The law of the Member State of origin shall be applicable to any rectification of the certificate.
      2.      No appeal shall lie against the issuing of a certificate pursuant to Articles 41(1) or 42(1).’
      21.      Article 47 of the Regulation, entitled ‘Enforcement procedure’ provides:
      
      ‘1.      The enforcement procedure is governed by the law of the Member State of enforcement.
      2.      Any judgment delivered by a court of another Member State and declared to be enforceable in accordance with Section 2 or certified
         in accordance with Article 41(1) or Article 42(1) shall be enforced in the Member State of enforcement in the same conditions
         as if it had been delivered in that Member State.
      
      In particular, a judgment which has been certified according to Article 41(1) or Article 42(1) cannot be enforced if it is
         irreconcilable with a subsequent enforceable judgment.’
      
      22.      Article 53 of the Regulation provides that each Member State must designate one or more central authorities to assist with
         the application of the Regulation. Under Article 55(c) of the Regulation, one of the functions of those authorities, in cases
         specific to parental responsibility, is to ‘facilitate communications between courts, in particular for the application of
         Article 11(6) and (7) and Article 15’.
      
       Factual and procedural background
      23.      I will proceed here as I did in my View in Rinau, (8) by summarising in tabular form the main elements of the factual and procedural background to the dispute, as set out in the
         order for reference and supporting documents.
      
      
               Date
            
            
               Italy
            
            
               Austria
            
         
               6.12.2006
            
            
               Birth of the child; under Italian law, the parents have joint custody. 
            
             
         
               31.1.2008
            
            
               The mother leaves the shared home with the child.
            
             
         
               4.2.2008
            
            
               The father applies to the Tribunale per i Minorenni di Venezia (Court for matters concerning minors, Venice) for sole custody
                  of the child and a ban preventing the mother from leaving Italy with the child.
               
            
             
         
               8.2.2008
            
            
               The Tribunale per i Minorenni di Venezia imposes a provisional ban preventing the mother from leaving Italy with the child.
            
             
          
            
               The mother applies for sole custody of the child.
            
            
               In spite of the ban, the mother travels to Austria with the child.
            
         
               16.4.2008
            
             
            
               The father seeks the return of the child under the Convention.
            
         
               23.5.2008
            
            
               Pending a final judgment on custody, the Tribunale per i Minorenni di Venezia orders that a psychologist’s report be obtained
                  and that regular contact be maintained between the child and the father, partly in Italy and partly in Austria, under the
                  supervision of the respective social services departments; in order that the mother may travel between the two countries with
                  the child to allow contact with the father, it withdraws the ban on leaving Italy; it grants provisional joint custody to
                  both parents and allows the mother to keep the child with her in Austria, with sole decision-making power over the child’s
                  daily life.
               
            
            
               Initially, the Austrian courts are unaware of the existence and content of that judgment.
            
         
               6.6.2008
            
             
            
               On application by the mother, the Bezirksgericht Judenburg (District Court, Judenburg, the district in which the mother and
                  child reside) prohibits the father from making contact with the mother and the child, on the ground that he has harassed the
                  mother.
               
            
         
               3.7.2008
            
             
            
               On the basis of Article 13(b) of the Convention (grave risk of psychological harm in the event of separation from the mother),
                  the Bezirksgericht Leoben (District Court, Leoben, the district neighbouring Judenburg) (9) dismisses the father’s application (of 16 April 2008) seeking an order for the return of the child to Italy.
               
            
         
               1.9.2008
            
             
            
               On appeal by the father, the Landesgericht Leoben (Regional Court, Leoben) sets aside the order of 3 July 2008 on the basis
                  of Article 11(5) of the Regulation, as the father has not been heard by the Bezirksgericht.
               
            
         
               6.9.2008
            
             
            
               The order of the Bezirksgericht Judenburg of 6 June 2008 expires, its period of validity having ended. 
            
         
               21.11.2008
            
             
            
               The Bezirksgericht Leoben hears the father and again dismisses his application, on this occasion citing the order of the Tribunale
                  per i Minorenni di Venezia of 23 May 2008 (of which it now has knowledge), ordering that the child should stay with the mother
                  in Austria.
               
            
         
               7.1.2009
            
             
            
               The Landesgericht Leoben confirms the dismissal of the father’s application, again on the grounds of Article 13(b) of the
                  Convention.
               
            
         
               9.4.2009
            
            
               The father asks the Tribunale per i Minorenni di Venezia to order the return the child under Article 11(8) of the Regulation.
            
             
         
               15.5.2009
            
            
               The mother claims that the Tribunale per i Minorenni di Venezia lacks jurisdiction, on the basis of Article 10 of the Regulation;
                  in the alternative, she requests the transfer of the case to the Bezirksgericht Judenburg, on the basis of Article ‘15(b)(5)’
                  (10) of the Regulation.
               
            
             
         
               30.4.2009 
               and
               19.5.2009
            
            
               The Tribunale per i Minorenni di Venezia hears the parties’ representatives, the mother not appearing in person; the representatives
                  state that they are prepared to discuss a schedule of contacts between father and child, to be arranged by an expert appointed
                  by the court.
               
            
             
         
               26.5.2009
            
             
            
               On application by the mother (not notified to the Tribunale per i Minorenni di Venezia), the Bezirksgericht Judenburg (without
                  having heard the father) assumes jurisdiction to hear the mother’s application for custody ‘under Article 15(5)’ of the Regulation;
                  it asks the Tribunale per i Minorenni di Venezia to decline jurisdiction and to transfer the proceedings to it.
               
            
         
               26.6.2009
            
            
               The father states that he is prepared to comply with the access schedule to be drawn up.
            
             
         
               27.6.2009
            
            
               The mother states that she does not intend to accept the access schedule to be drawn up, claiming personal difficulties and
                  fears for the well-being of the child.
               
            
             
         
               8.7.2009
            
            
               The expert submits the proposed contact schedule to the Tribunale per i Minorenni di Venezia, which, on the same day, receives
                  the request from the Bezirksgericht Judenburg to transfer proceedings. 
               
            
             
         
               10.7.2009
            
            
               The Tribunale per i Minorenni di Venezia dismisses the plea of lack of jurisdiction raised by the mother and refuses to transfer
                  jurisdiction to the Bezirksgericht Judenburg, on the ground that the conditions of Article 15 of the Regulation have not been
                  met (the situation is not exceptional for the purposes of Article 15(1), and a particular connection with Austria within the
                  meaning of Article 15(3) has not been established); it states that it was not possible to complete the psychologist’s report
                  due to the mother’s failure to cooperate; it orders the prompt return of the child to Italy, either accompanied by the mother
                  (in which social housing would be made available and an access diary drawn up) or to the father, in order to restore the relationship
                  between the father and the child; it also certified its judgment in accordance with Article 42(2) of the Regulation. 
               
            
             
         
               25.8.2009
            
             
            
               The Bezirksgericht Judenburg awards provisional custody to the mother, on the ground that a return to Italy would be prejudicial
                  to the best interests of the child. Its decision is notified to the father, without a translation and without any information
                  on the right to refuse to accept it.
               
            
         
               22.9.2009
            
             
            
               The father applies to the Bezirksgericht Leoben for enforcement of the return order made by the Tribunale per i Minorenni
                  di Venezia on 10 July 2009, relying on Article 47 of the Regulation.
               
            
         
               23.9.2009
            
             
            
               The Bezirksgericht Judenburg certifies that its order of 25 August 2009 has become final and enforceable. 
            
         
               12.11.2009
            
             
            
               The Bezirksgericht Leoben dismisses the application for enforcement of the return order of the Tribunale per i Minorenni di
                  Venezia, on the ground that the return of the child to the father would expose her to psychological harm. 
               
            
         
               30.11.2009
            
             
            
               The father lodges an appeal against the judgment of the Bezirksgericht Leoben of 12 November 2009.
            
         
               20.1.2010
            
             
            
               The Landesgericht Leoben upholds the father’s appeal, relying on a strict application of the provisions of the Regulation.
            
         
               16.2.2010
            
             
            
               The mother brings an appeal on a point of law before the Oberster Gerichtshof against the judgment of the Landesgericht Leoben
                  of 20 January 2010.
               
            
         
               20.4.2010
            
             
            
               The Oberster Gerichtshof refers five questions to the Court for a preliminary ruling, requesting that they be dealt with under
                  the urgent procedure.
               
            
         
               3.5.2010
            
             
            
               The request for a preliminary ruling arrives at the Court.
            
          Questions referred to the Court
      24.      The referring court accepts that, according to the judgment in Rinau, (11) where a certificate has been issued under Article 42 of the Regulation, the court of enforcement can only declare the enforceability
         of a judgment given under Article 11(8) of the Regulation and allow the immediate return of the child. Any examination of
         the substance of the judgment of the Italian court is therefore precluded as a matter of principle. Futhermore, under national
         rules of procedure, the lack of territorial jurisdiction of that court may not be relied on in the context of an appeal on
         a point of law. Nevertheless, it considers that certain points require closer examination.
      
      25.      The Oberster Gerichtshof therefore decided to refer the following five questions to the Court:
      
      ‘1.      Is a “judgment on custody that does not entail the return of the child” within the meaning of Article 10(b)(iv) of [the Regulation]
         also to be understood as meaning a provisional measure by which “parental decision-making power” and in particular the right
         to determine the place of residence is awarded to the abducting parent pending the final judgment on custody?
      
      2.      Does a return order fall within the scope of Article 11(8) of [the Regulation] only where the court orders return on the basis
         of a judgment on custody delivered by that court?
      
      3.      If Question 1 or 2 is answered in the affirmative:
      (a)      Can the lack of jurisdiction of the court of origin (Question 1) or the inapplicability of Article 11(8) of [the Regulation]
         (Question 2) be relied on in the second State as against the enforcement of a judgment in respect of which the court of origin
         has issued a certificate in accordance with Article 42(2) of [the Regulation]?
      
      (b)      Or, in such circumstances, must the opposing party apply for that certificate to be revoked in the State of origin, thereby
         allowing enforcement in the second State to be stayed pending the decision in the State of origin? 
      
      4.      If Questions 1 and 2 or Question 3(a) are/is answered in the negative:
      Does a judgment delivered by a court in the second State and regarded as enforceable under the law of that State, by which
         provisional custody was awarded to the abducting parent, preclude the enforcement of an earlier return order made in the State
         of origin under Article 11(8) of [the Regulation], in accordance with Article 47(2) of [the Regulation], even if it would
         not prevent the enforcement of a return order made in the second State under the Hague Convention?
      
      5.      If Question 4 is also answered in the negative:
      (a)      Can the second State refuse to enforce a judgment in respect of which the court of origin has issued a certificate under Article 42(2)
         of [the Regulation] if, since its delivery, the circumstances have changed in such a way that enforcement would now constitute
         a serious risk to the best interests of the child?
      
      (b)      Or must the opposing party invoke that change of circumstances in the State of origin, thereby allowing enforcement in the
         second State to be stayed pending the judgment in the State of origin?’
      
       Procedure before the Court
      26.      As the case is subject to the urgent procedure governed by Article 104b of the Rules of Procedure of the Court, written observations
         were submitted by the Austrian Government and the European Commission, the only parties, with the exception of the parties
         to the main proceedings, entitled to make submissions at that stage. The same parties, together with the Czech, German, French,
         Italian, Latvian, Slovenian and United Kingdom Governments, were represented at the hearing on 14 June 2010. The parents,
         although entitled to submit written observations and to be represented at the hearing, did not, in this instance, exercise
         that right.
      
       Analysis
       Preliminary remarks
      27.      The questions referred by the Oberster Gerichtshof are prompted, in no small part, by the perception that there is a conflict
         between the literal interpretation and the teleological interpretation of certain provisions of the Regulation. It therefore
         seems important to bear in mind the three fundamental principles which underpin the relevant provisions of the Regulation
         and which should inform any teleological interpretation. (12)
      
      28.      First, the Regulation is based on the primacy of the interests of the child and respect for its rights. That idea is expressed
         not only in the objective of taking into account, in each case, the best interests of the child himself or herself but also,
         and in particular, in the general rule that it is the courts of the child’s place of habitual residence which are best placed
         to settle any issues regarding custody or parental responsibility and which must therefore, in principle, have jurisdiction
         in the matter. However, it seems to me that, although the court called upon to make a decision in a specific case must take
         into account the specific interests of each child concerned, the Regulation must be interpreted on the basis of a more comprehensive
         concept of the best interests of the child, which is generally applicable.
      
      29.      Secondly, the Regulation seeks to ensure that any wrongful removal of a child has no legal effect, unless subsequently accepted
         by the other interested parties. To that end, it first lays down an almost automatic mechanism for securing the return of
         the child without delay. Second, it strictly limits the possibilities of transferring jurisdiction to the courts of the Member
         Sate of wrongful removal, allowing those of the Member State of former habitual residence to bypass any judgment of non-return
         made on the basis of Article 13 of the Convention. 
      
      30.      Thus, even within the limited field of parental responsibility and wrongful removal of children, the Regulation pursues at
         least two objectives – the jurisdiction of courts in the State of habitual residence of the child and the return of the child,
         following a wrongful removal, to the State of former habitual residence – which may prove to be partially incompatible, at
         least if the period of removal is prolonged, resulting in the child’s acquisition of a new habitual residence in the Member
         State of removal.
      
      31.      Thirdly, the Regulation requires national courts to show a high level of mutual trust, keeping the grounds for non-recognition
         of judgments issued by a court in another Member State to the minimum required and making the recognition and enforcement
         of those judgments almost automatic. Furthermore, and in the same vein, it lays down a mechanism for cooperation and encourages
         national courts to use it.
      
      32.      In my view, two other aspects of the Regulation should also be emphasised.
      
      33.      First, the Regulation provides only for rules concerning jurisdiction, recognition and enforcement. It in no way concerns
         substantive issues. Contrary to the argument which the Austrian Government appeared to put forward at the hearing, application
         of the Regulation is not ‘European integration at the expense of children’. Rather, the Regulation seeks clearly to define
         which court has jurisdiction in cross‑border situations and to ensure that other courts have confidence in its judgments,
         since all the courts of the Member States must ensure that the best interests of the child concerned prevail when making decisions.
      
      34.      Secondly, the Regulation presupposes – and in some cases even requires – that the courts and parties should act swiftly in
         matters relating to the wrongful removal or retention (13) of a child. Where that swift action is not ensured in reality, application of the Regulation suffers, as this case illustrates.
         In particular, the Regulation seeks to prevent a situation from becoming complicated by new connections which the child may
         acquire with the Member State of wrongful removal.
      
      35.      Lastly, it is necessary to bear in mind the successive stages of the procedure provided for by the Convention and the Regulation
         in the event of wrongful (and disputed) removal. First of all, the parent left behind must apply on the basis of Article 12
         of the Convention to the courts of the Member State of removal to obtain a return order. That application must be approved,
         except where one of the exceptional grounds for refusal listed in Article 13 of the Convention exists and where, in the case
         of a refusal on the basis of Article 13(b), it has not been established that adequate arrangements have been made to secure
         the protection of the child after its return (see Article 11(4) of the Regulation). The decision must be made, except in exceptional
         circumstances, within six weeks (Article 11(3) of the Regulation). A judgment of non-return must be communicated to the authorities
         of the Member State of former habitual residence and the parties (generally the parents) must have the opportunity to be heard
         before the court having jurisdiction in that State. If appropriate, the latter court may, nonetheless, order the return of
         the child (Article 11(8) of the Regulation) and its judgment will be directly enforceable in the Member State of removal,
         if it is certified in accordance with Article 42 of the Regulation. Such certification is possible, however, only where the
         court has taken into account the reasons for and evidence underlying the order of non-return. A court which orders return
         under those circumstances must, furthermore, inform the authorities of the Member State of removal of the details of any measures
         taken to ensure the protection of the child after its return.
      
       Question 1
      36.      The Oberster Gerichtshof asks the Court whether a ‘judgment on custody that does not entail the return of the child’ within
         the meaning of Article 10(b)(iv) of the Regulation is to be understood as including a provisional measure by which ‘“parental
         decision-making power”, in particular the right to determine the place of residence’, is awarded to the abducting parent pending
         the final judgment on custody. (14)
      
      37.      In the context of these proceedings, that involves determining whether, as a result of its judgment of 23 May 2008, the Tribunale
         per i Minorenni di Venezia lost the jurisdiction that it would otherwise have retained under the general rule in Article 10
         of the Regulation, as a court of the Member State in which the child had her habitual residence immediately prior to her wrongful
         removal. The Oberster Gerichtshof takes the view that the child has now acquired a new habitual residence in Austria and that,
         although the condition in Article 10(a) (in this case, the father’s acquiescence) is not satisfied, the first two conditions
         imposed in alternative (b) have been met (namely that the child resided in Austria for a period of at least one year after
         the father had knowledge of her whereabouts and that the child is settled in her new environment). If at least one of the
         additional conditions (i) to (iv) is also met, general jurisdiction passes to the courts of Austria, the Member State of the
         child’s new habitual residence. The Oberster Gerichtshof discounts conditions (i) to (iii), but takes the view that if – as
         the mother claims – the judgment of the Tribunale per i Minorenni di Venezia of 23 May 2008 is a ‘a judgment on custody that
         does not entail the return of the child’, condition (iv) will be satisfied.
      
      38.      However, the Oberster Gerichtshof is of the view that, on a teleological interpretation, that condition should not be regarded
         as having been satisfied – even though, interpreted literally, the judgment in question is indeed a ‘judgment on custody’,
         as it governs custody of the child, if only provisionally, and does not entail her return, at least in the immediate future.
      
      39.      In essence, its reasoning is as follows. Where a final judgment on custody does not entail the return of the child, there is no reason to uphold the jurisdiction of the courts
         of the State of former habitual residence. Those of the new State of habitual residence will always be in a better position
         to make subsequent decisions concerning the child and the conditions in Article 10(b)(iv) of the Regulation are understandable
         and reasonable. By contrast, where a provisional authorisation to leave the child with the ‘abducting parent’ seeks merely to prevent the removal of the child pending the
         final judgment, a literal interpretation, by removing jurisdiction from the court in the State of former habitual residence,
         would prevent that court from issuing its final judgment. However, given the objective of the Regulation, that court should
         lose its jurisdiction only if the custody proceedings come to an end and no return order is made. The Austrian Government entirely concurs with that reasoning.
      
      40.      Similarly, the Commission points out the risk that a court in the Member State of former habitual residence may be dissuaded
         from adopting a provisional judgment on custody that would leave the child in the Member State of new habitual residence and
         would be in the interests of the child, for fear of subsequently being deprived of its jurisdiction to issue a final judgment.
         The Commission also takes the view that, as exceptions to the general rule of upholding the jurisdiction of the courts of
         the Member State of former habitual residence, the conditions for transferring jurisdiction listed in Article 10 of the Regulation
         should be interpreted narrowly rather than broadly.
      
      41.      With the exception of the Republic of Slovenia, all the Member States represented at the hearing took essentially the same
         view.
      
      42.      Broadly speaking, I also concur with that view, though I consider that it is necessary to qualify certain aspects of it and
         to examine other considerations which point to the opposite conclusion and which cannot be dismissed out of hand.
      
      43.      First, I would point out that the considerations of the Oberster Gerichtshof are based, to a certain extent, on the reasons
         which led the Tribunale per i Minorenni di Venezia to grant provisional custody to the mother. However, I am reluctant to
         adopt such an approach. As a matter of principle, it does not seem to me to be desirable to interpret the Regulation on the
         basis of the specific reasoning of an individual judgment on custody. The question should rather be whether an objective differentiation
         may be inferred on the basis of whether or not a judgment is provisional. Furthermore, there remains a risk that the court
         of one Member State will misinterpret the reasoning of the court of another Member State. (15) I shall therefore attempt to analyse the issue by adopting a more general approach.
      
      44.      Next, I am reluctant, in such a context, to apply baldly the principle that exceptions or derogations to a rule must be interpreted
         restrictively. Indeed, in the case of Article 10, although the rule upholding the jurisdiction of the court of the former
         habitual residence is consistent with one of the fundamental principles of the Regulation – namely that of depriving the unlawful
         act of the abducting parent of any legal effect – the exception is consistent with another fundamental principle, since it
         is a rule of jurisdiction ‘shaped in the light of the best interests of the child, in particular on the criterion of proximity’.
         (16)
      
      45.      Lastly, it must be recognised that – as attractive as the result proposed by the referring court, the Commission and almost
         all the Member States represented at the hearing may seem – there are some arguments which go against it. They can be summarised
         as follows.
      
      46.      Article 10(b)(iv) of the Regulation deals with a situation in which a child has resided for at least one year in the Member
         State of wrongful removal, where it has acquired a new habitual residence and is settled in its new environment, and in which
         the courts of the Member State of its former habitual residence have not only failed, during that period, to reach a final
         judgment on custody of the child, but have also taken the view – albeit temporarily, but in any event for the relevant period
         of at least one year – that it was in the child’s best interests to remain in the Member State of removal. Given the passage
         of time, it is very probable that those courts will find it increasingly difficult to gather information regarding the child’s
         current situation and social circle (using, for example, psychologists’ reports, social services’ reports and/or, depending
         on the age of the child, face-to-face interviews). Furthermore, those courts are located in a Member State with which the
         child is increasingly likely to be losing contact. In such circumstances, should not the principle that the court which is
         nearest the child has jurisdiction not prevail over of the principle upholding the jurisdiction of the court of former habitual
         residence?
      
      47.      In my view, the answer is ‘no’. 
      
      48.      Where a child has been wrongfully removed to another Member State, the immediate objective of the Regulation and of the Convention
         is to ensure its swift return, in order to deprive the ‘abducting parent’ of any practical or legal benefit he (or she) may
         hope to reap from the situation. (17) If that objective is effectively achieved, it will also act as a significant deterrent. However, as stated in the explanatory
         memorandum to the Commission’s proposal prior to adoption of the Regulation, (18) ‘it may be legitimate in certain cases for the de facto situation created by an unlawful act of child abduction to produce as a legal effect the transfer of jurisdiction. To this
         end, a balance must be struck between allowing the court that is now closest to the child to assume jurisdiction and preventing
         the abductor from reaping the benefit of his or her unlawful act’.
      
      49.      It is that balance – between two of the principles I have identified above (19) – which Article 10 of the Regulation seeks to strike as regards, first, the general jurisdiction in matters concerning parental
         responsibility and, second, by means of Article 11(8) of that regulation, the special jurisdiction to order the return of
         the child.
      
      50.      With regard to wrongful removals, the basic principle, which seeks to deprive the ‘abducting parent’ of any benefit obtained
         from his or her unlawful act, requires that the jurisdiction of the courts of the Member State of former habitual residence
         should be upheld. That principle applies not only to general jurisdiction but also, and a fortiori, to jurisdiction to order the child’s return.
      
      51.      It nevertheless seems entirely reasonable – and consistent with the aim of seeking to strike the balance described above –
         to provide, as does Article 10(a) of the Regulation, that the acquisition of a new habitual residence, together with theacquiescence of any party having rights of custody, may result in the transfer of that jurisdiction to the courts of the Member State of new habitual residence. In those circumstances,
         there is no longer any reason to provide for jurisdiction to order the return of the child.
      
      52.      It might appear just as reasonable to provide for the same transfer of jurisdiction each time the child has not only acquired
         a new habitual residence, but has also resided in the new Member State for more than one year and is settled in its new environment,
         even in the absence of the express acquiescence of all the parties having rights of custody. That is the solution adopted
         in Article 7 of the Hague Convention of 1996, (20) which seems consistent with the principle of upholding the jurisdiction of the courts of habitual residence in the best interests
         of the child. However, although it is clear from the travaux préparatoires for the Regulation that several delegations favoured
         that solution, (21) ultimately a more rigorous approach was consciously selected, limiting the transfer of jurisdiction strictly to the four
         situations listed exhaustively in the final wording of Article 10(b) of the Regulation.
      
      53.      The first three of those situations involve, de facto, the tacit acquiescence of the holders of a right of custody (that is, usually, the parent left behind), in so far as no
         application for return of the child has been made in the Member State of wrongful removal, or such an application has been
         either withdrawn or refused without the applicant taking further steps in the proceedings in the Member State of former habitual
         residence, in accordance with Article 11(7) and (8) of the Regulation.
      
      54.      The fourth situation, with which we are here concerned, is that of a judgment on custody that does not entail the return of the child, issued by a court of the Member State of former habitual residence. This involves not the tacit acquiescence of that court
         to the transfer of jurisdiction, but rather a judgment that endorses the acquisition by the child of a new habitual residence
         in another Member State, which will lead to the transfer of jurisdiction. Thus, although the transfer of jurisdiction takes
         place automatically under Articles 8 and 9 of the Regulation where a child changes habitual residence by moving lawfully from
         one Member State to another, to achieve the same result in the case of wrongful removal, the court of the Member State of
         former habitual residence must legalise that removal by approving it.
      
      55.      It is not disputed that a judgment which seeks to provide a lasting solution to the issue of custody constitutes such approval,
         provided that the other conditions of Article 10(b) of the Regulation (new habitual residence for more than one year, settling
         in the new environment) are satisfied. According to a literal interpretation (the Slovenian Government highlighted the very
         broad definition of the term ‘judgment’ in Article 2(4) of the Regulation), the same would apply to a provisional judgment,
         meant to be replaced by a subsequent lasting judgment.
      
      56.      However, I do not believe that that should be the case. The period of one year which is a precondition for the transfer of
         jurisdiction in all the situations provided for in Article 10(b) of the Regulation clearly involves, in the first three cases,
         a deadline for making or confirming an application for the return of the child. It would therefore be astonishing – and inconsistent
         – if, in the fourth case, it involved a deadline for the conclusion of the procedure. However, that would be the result if
         provisional judgments were included in the concept of ‘judgment on custody that does not entail the return of the child’.
         In that situation, a court which had not issued any ‘judgment on custody that does not entail the [immediate] return of the
         child’ would retain its jurisdiction until the end of the procedure, while a court which had issued such a judgment (which
         might often prove to be desirable in the interests of the child) would thereby set itself a deadline for issuing a more lasting
         judgment.
      
      57.      Where a court is seised of a dispute relating to the custody of a child, and in particular where that dispute concerns wrongful
         removal, it is often faced with a major problem. The parents’ doggedness may lead one or other of them to use all the available
         procedures in order to secure the child. In some cases, the parent concerned may mistakenly use the wrong means; in others,
         he or she may consciously exploit them. Furthermore, since the courts of two Member States are necessarily involved, proceedings
         in one State may delay those in the other, and any failure in communication may further prolong matters. However, in all cases
         there is a real risk that the court seised in the Member State of former habitual residence may lose de facto control over the duration of the procedure.
      
      58.      The present case illustrates this. First, it appears that the Bezirksgericht Leoben dismissed the application for return made
         by the father on the basis of the Convention only on 3 July 2008, some eleven weeks after that application was lodged on 16
         April 2008, whereas Article 11(3) of the Regulation imposes a maximum period of six weeks ‘except where exceptional circumstances
         make this impossible’. Then, following that refusal, instead of applying directly to the Tribunale per i Minorenni di Venezia
         to obtain an order under Article 11(8) of the Regulation, the father appealed against the refusal in Austria – twice, as the
         first refusal was annulled and a new refusal decision was issued. Furthermore, even after his second appeal was dismissed,
         on 7 January 2009, the father waited three months before making the application under Article 11(8) of the Regulation. (22) Throughout that period, the measures intended by the Tribunale per i Minorenni di Venezia to ensure that it had sufficient
         information to issue a lasting judgment on the custody of the child (contact with the father, psychologist’s report) – the
         very measures on which the decision to leave the child provisionally with her mother in Austria was based – could not be successfully
         implemented, due to the mother’s total lack of cooperation. The period of one year therefore came to an end, though this was
         due neither to the father’s acquiescence nor to a failure by the Tribunale per i Minorenni di Venezia to act. (23)
      
      59.      Nevertheless, the court first seised of such a dispute must very often take immediate provisional measures, to deal with what
         is most urgent, while waiting to gather all the information necessary to issue a lasting judgment regarding custody of the
         child. That is precisely what happened in this case. I do not regard it as conceivable that the legislature intended that
         jurisdiction should to be transferred automatically at the end of one year in such a situation, whereas it would have remained
         with the first court if that court had not had to take an immediate provisional measure. postponing the lasting judgment on
         custody. That would amount to interrupting the course of proceedings initiated before the court having jurisdiction, on the
         sole ground that the court had taken a provisional measure which it deemed to be necessary.
      
      60.      On the contrary, the transfer of jurisdiction to the courts of the Member State of wrongful removal may, in my view, be justified
         only where the passage of time is accompanied by the acquiescence of the applicant parent – bringing a definitive end to any
         proceedings already initiated or excluding any subsequent proceedings which could have resulted in a return order enforceable
         under Article 11(8) and Article 42 of the Regulation – or by a judgment issued by the court having jurisdiction before which
         the case has been brought that terminates the action brought before it and does not entail the return of the child. In that
         way, the four situations set out in Article 10(b) of the Regulation all have a consistent basis in a judgment which explicitly
         or implicitly excludes the subsequent use of the mechanism laid down in Article 11(8) and Article 42 of the Regulation.
      
      61.      At the hearing, the question was raised as to how the court of the Member State of wrongful removal may determine with certainty
         whether the judgment of the court of the Member State of former habitual residence is provisional or final in nature. Judgments
         relating to the custody of a child are always, by their very nature, subject to possible review on the basis of a change in
         circumstances and therefore never have the same degree of finality as most other judicial decisions. (24) Furthermore, the differences in procedure and terminology between the legal systems of the Member States may complicate the
         task of distinguishing between a provisional judgment and a ‘final’ judgment.
      
      62.      It seems to me that the answer is to be found in the criterion put forward by the French Government, namely that a judgment
         on custody must be regarded as provisional for as long as the proceedings of which the court is seised have not run their
         full course. It is therefore sufficient to assess – with the help, where required, of the relevant central authorities – whether
         there are measures still to be taken in the relevant proceedings, without its being necessary to bring further proceedings
         before the court.
      
      63.      I therefore conclude that the objectives of the Regulation preclude a literal interpretation of Article 10(b)(iv) and that
         a provisional measure awarding custody of a child to the abducting parent pending the final (or lasting) judgment is not a
         ‘judgment on custody that does not entail the return of the child’ within the meaning of that provision.
      
       Question 2
      64.      The Oberster Gerichtshof asks whether a return order falls within the scope of Article 11(8) of the Regulation only where
         the court orders return on the basis of a judgment on custody which it has itself delivered.
      
      65.      It explains that the mother submits that only a return order made on the basis of a judgment on custody is covered by Article
         11(8) of the Regulation. The judgment of the Tribunale per i Minorenni di Venezia of 10 July 2009, the enforcement of which
         the father is seeking to secure, is not based on a judgment on custody and is therefore not covered by that provision.
      
      66.      The Oberster Gerichtshof accepts, rightly, that such an interpretation is substantiated neither by the wording of the provision
         – which speaks, without qualification, of ‘any subsequent judgment which requires the return of the child’ – nor by the judgment
         in Rinau(25) – which emphasises the procedural autonomy of a judgment following a judgment of non-return – but takes the view that it
         cannot be ruled out in the context of a systematic and teleological interpretation. First, it is clear from Article 11(7)
         of the Regulation that the set of rules in Article 11(6) to (8), giving the last word to the courts of the Member State of
         former habitual residence, is justified only where the return order is based on a custody decision entailing the return of
         the child. Secondly, such an interpretation makes the provisions of Article 10 and Article 11 more consistent, taken as a
         whole.
      
      67.      I would make clear from the outset that I am in no way convinced that the considerations set out by the referring court should
         lead to the result it proposes. As I explained in the context of Question 1, the main objective of the Convention is to secure,
         except in certain exceptional circumstances, the prompt return of the child, before the issues of custody or parental responsibility are examined. Article 11 of the Regulation seeks to strengthen the provisions
         of the Convention, still with reference to a return without delay – and not after having issued a judgment on the issue of custody, at the end of proceedings which could prove to be lengthy.
      
      68.      Nevertheless, the Oberster Gerichtshof considers – and that view was also put forward by several Member States at the hearing
         – that a return order based on a custody decision requiring the return of the child, made after the finding of facts and taking
         of evidence, is more likely to be soundly based than an order made in proceedings that are merely summary.
      
      69.      Furthermore, according to the referring court, if decisions of the latter type were to fall within the scope of Article 11(8)
         of the Regulation, it would be difficult to make sense of the article as a whole. Instead of first requiring the court of
         the State of wrongful removal to conduct return proceedings under the Convention, the court of the State of former habitual
         residence could simply make a return order immediately after the abduction, which could be directly enforceable in the other
         Member State in exactly the same way as a judgment under Article 11(8) of the Regulation. The proceedings under the Convention
         required by Article 11 of the Regulation would therefore delay matters and would have no intrinsic significance.
      
      70.      As regards the first part of that reasoning, I would acknowledge that proceedings involving more careful consideration of
         the facts are more likely to lead to a sound result. However, if followed correctly, the procedure laid down in Article 11(8)
         of the Regulation offers, in my view, an entirely adequate guarantee. The situation is one in which the court of the State
         of wrongful removal has already refused to order the return of the child, on one or more of the grounds listed in Article
         13 of the Convention, and has communicated to the court of the State of former habitual residence – possibly with the help
         of the respective central authorities, as provided for in Article 55(c) of the Regulation – a copy of its judgment together
         with any relevant documents. That court – which is better placed to assess the circumstances in which the child lived before
         the removal and those in which the child will live following the return, if ordered – may, under Article 42 of the Regulation,
         certify its judgment issued on the basis of Article 11(8) of the Regulation only if it has taken into account the reasons
         for and evidence underlying the non-return order. (26) That court may therefore be presumed – in accordance also with the principle of mutual trust underpinning the Regulation
         – to have rejected those reasons and that evidence on the basis of other evidence of which the first court was not aware.
      
      71.      The approach advocated by certain Member States at the hearing appears, in contrast, to be based on mistrust, on the part
         of the courts of the Member State of removal, with regard to the judgments issued by the courts of the Member State of former
         habitual residence. Such an approach not only constitutes a negation of the principle of mutual trust, but also takes no account
         of the clear advantage arising from a two-fold examination of the application for return by two courts, one of which is best
         placed to take into account the current circumstances in which the child lives, while the other is best placed to assess the
         circumstances in which the child previously lived and will live in the event of its return.
      
      72.      As regards the second part of the reasoning, it seems to me that it is based on a false understanding of the relationship
         between the Convention and the Regulation. The Convention provides without ambiguity that, in the event of the abduction of
         a child, it is necessary first to apply to the courts of the State in which the child is present to secure its prompt return.
         Indeed, those courts are best placed to order the return in the most efficient manner. Their judgments will be enforced directly
         in accordance with national procedure. It is only where those courts consider that one of the grounds for non-return listed
         in Article 13 of the Convention applies – therefore, only in situations which are deemed to be exceptional – that it necessary
         to apply, under Article 11 of the Regulation, to the court having jurisdiction in the State of former habitual residence.
         That court must therefore be persuaded that the ground relied upon does not prevent the return of the child before being able
         to override the judgment of non-return issued under the Convention.
      
      73.      If, on the other hand, it fell to the courts of the State of former habitual residence to order the return of the child immediately,
         first, the enforcement procedure would – always and not only where Article 11(8) of the Regulation is used – be complicated
         by the need for the authorities of two separate Member States to cooperate, entailing, in most cases, the need to obtain a
         translation of the relevant documents and, secondly, an essential safeguard of the best interests of the child, namely the
         compulsory two-fold examination in cases of uncertainty concerning the appropriateness of ordering its return would be lacking.
      
      74.      It therefore seems to me that the rules set out in Article 11 of the Regulation, taken as a whole, are entirely consistent,
         without there being any need to require a prior judgment on custody as the basis for a judgment issued under Article 11(8)
         of the Regulation.
      
      75.      The Oberster Gerichtshof also points out that a judgment issued under Article 11(8) of the Regulation, where it precedes a lasting judgment on custody which could lead to a different result, may require the child to change its place of residence
         twice. That point was also emphasised by several Member States at the hearing.
      
      76.      The possibility of the child having to move twice cannot be denied. However, that possibility was accepted, in my view, both
         by the drafters of the Convention and by those of the Regulation as a necessary corollary of the objective of securing, in
         the event of wrongful removal or retention, the prompt return or return without delay of the child. That intention appears
         to me to be very clear in the scheme of the relevant provisions of the Regulation. First, the child is returned to the Member
         State of its former habitual residence and then issues of custody and parental responsibility are determined. In a certain
         number of cases, that will necessarily mean that a child must move twice – or even three times, taking into account the first
         wrongful removal. Although it is certainly not in the interests of the child concerned to move several times, it seems to
         me that the wider interest of discouraging any attempt at abduction by depriving it of any legal or practical effect should
         prevail, in accordance with the spirit of the Regulation (and the Convention).
      
      77.      Furthermore, the procedure should be considered in the light of the objective pursued, namely the return of the child before
         the court having jurisdiction. That return simply ‘corrects’ the first wrongful removal. The court having jurisdiction must
         then examine the issue of custody taking into account all the circumstances, and at least some aspects of that examination,
         such as psychological observations, social reports and, where appropriate, face-to-face interviews, normally require the child
         to be present. It cannot be in the child’s interests to complicate and prolong that process by keeping the child in the Member
         State of wrongful removal. Finally, the court issues its judgment, which may or may not result in a further move, but will
         have been issued with full knowledge of the facts.
      
      78.      Lastly, the Oberster Gerichtshof suggests that affording the courts of the Member State of former habitual residence the possibility
         of ordering the return of a child under Article 11(8) of the Regulation, without having first issued a judgment on custody,
         would go against the principle of mutual trust, as it presupposes that the courts of the other Member State could refuse to
         order return on subjective grounds.
      
      79.      I do not find that argument at all convincing. As I have explained above, the procedure ensures a two-fold examination in
         the event of uncertainty as to the appropriateness of ordering the return of the child and requires a well-considered statement
         of reasons for any return order issued under Article 11(8) of the Regulation. That does not appear to me to be in any way
         incompatible with the principle of mutual trust which underpins the Regulation and which – on the contrary – requires the
         court of a Member State not to attribute any subjective ulterior motive to the courts of another Member State, but to presume
         that their judgments are as objectively reasoned as those issued by the courts of its own Member State.
      
      80.      I therefore take the view that nothing in the wording or the structure of the Regulation restricts the possibility of ordering
         the return of a child under Article 11(8) of the Regulation to cases in which the same court has already issued a judgment
         on custody.
      
       Question 3
      81.      If the answer to Question 1 or 2 is in the affirmative, the Oberster Gerichtshof asks whether it is possible, in the State
         of enforcement, to rely on the lack of jurisdiction of the court of origin (Question 1) or the inapplicability of Article
         11(8) of the Regulation (Question 2) as against the enforcement of a judgment in respect of which the court of origin has
         issued a certificate in accordance with Article 42(2) of the Regulation, or whether, in such circumstances, the defendant
         must apply for that certificate to be withdrawn in the Member State of origin, which would mean that enforcement in the State
         of enforcement could be stayed pending the decision of the State of origin.
      
      82.      In so far as I propose a negative response to Questions 1 and 2, Question 3 no longer arises. I will examine it nevertheless,
         given that the Court may answer either of those questions in the affirmative and, in particular, in the light of the more
         general interest there may be in clarifying the limits to the possibilities of opposing the enforcement of a judgment certified
         in accordance with Article 42(2) of the Regulation.
      
      83.      The Oberster Gerichtshof notes that, as the Tribunale per i Minorenni di Venezia issued a certificate under Article 42 of
         the Regulation, the Austrian courts have no jurisdiction to review the substance of its judgment. Nonetheless, it is not inconceivable
         that those courts may be able to verify whether that judgment was indeed issued on the basis of Article 11(8) of the Regulation.
         Since, according to Article 40 of the Regulation, Section 4 of the Regulation applies to ‘the return of a child entailed by
         a judgment given pursuant to Article 11(8)’, Article 42(1) of the Regulation applies, and the certificate is thus binding,
         only if such a judgment existed – which would not be the case if the answer to either of the first two questions were in the
         affirmative.
      
      84.      The referring court also states that, since that certificate is intended to enable immediate enforcement without further review
         as to substance, only the court of origin could declare that it had been wrongly issued. However, Article 43 of the Regulation
         provides only for ‘rectification’ of the certificate. By contrast, under Article 10 of Regulation No 805/2004, (27) a more recent provision dealing with a similar issue, the European Enforcement Order certificate is, upon application to
         the court of origin, to be withdrawn where it was clearly wrongly granted. Since the European legislature would certainly
         not have sought to provide a lesser degree of judicial protection in connection with the return of a child than in connection
         with the enforcement of an uncontested claim, the Oberster Gerichtshof takes the view that the same should apply to the certificate
         granted in this case. In those circumstances, Article 23 of Regulation No 805/2004 (28) should also apply by analogy, so as to allow a stay of enforcement pending a ruling by the court of origin on the application
         for rectification or withdrawal of the certificate.
      
      85.      The reasoning of the referring court therefore rests largely on a comparison with Regulation No 805/2004, adopted less than
         five months after the Regulation, the travaux préparatoires for both regulations taking place within the Council of the European
         Union to a large extent during the same timeframe. It would therefore be astonishing, in my view, if a significant difference
         between the two texts (rectification only where there is a material error in the context of the Regulation and rectification
         where there is a material error and withdrawal if the certificate has been wrongly granted in the context of Regulation No
         805/2004) did not reflect the legislature’s intention to treat the two situations differently. Indeed, it is clear from those
         travaux préparatoires that various options were contemplated in both cases before settling on the current differing texts.
         (29)
      
      86.      It therefore seems to me that the first of those regulations cannot be interpreted in the light of the second, all the more
         so since, although both are concerned with the general field of judicial cooperation in civil matters, the specific matters
         to which they relate are very different and do not necessarily require comparable approaches. Indeed, the importance of ensuring
         the return of a child in the event of wrongful removal bears no relation to the importance of enforcing payment of an uncontested
         claim. I would point out, furthermore, that the situations governed by the relevant provisions also differ in that, in the
         context of the Regulation, what is involved is a conflict, and therefore a dispute, which has already been heard and taken
         into consideration by at least two courts, whereas, in the context of Regulation No 805/2004, the application for withdrawal
         of the certificate transforms a supposedly uncontested claim into a claim which is at least partially contested, which may
         justify suspension by a court of enforcement which has not previously been seised of the claim.
      
      87.      That said, it is clear that the question remains of what options are open where it appears that a certificate of the type
         referred to in Article 42 of the Regulation has been wrongly granted. Although the importance of securing the prompt return
         of a child who has been wrongfully removed and of ensuring the simple and rapid enforcement of judgments ordering that return
         at the end of the procedure provided for in Article 11 of the Regulation militates against the possibility of challenging
         the certificate provided for in Article 42, it is always possible that a court may grant such a certificate, taking the view
         (wrongly) that it is entitled to do so, while in reality the conditions necessary for issuing a judgment on the basis of Article
         11(8) of the Regulation have not been met.
      
      88.      An example put forward at the hearing is that of a court of a Member State of former habitual residence which orders the return
         of a child, without there previously having been an order on non-return under Article 13 of the Convention in the Member State
         of wrongful removal, and which certifies its order in accordance with Article 42 of the Regulation. The court concerned would
         indeed have jurisdiction to issue a judgment ordering the return of the child in those circumstances but, in that case, it
         would not be a judgment covered by Article 11(8) of the Regulation. Therefore, no provision is made for the certification
         of such a judgment in accordance with Article 42 of the Regulation (30) and the certificate would thus be wrongly granted.
      
      89.      It is hardly conceivable that the legislature would have intended to eliminate all means of remedying such an error, which
         does not necessarily correspond to the sole possibility of rectification set out in recital 24 in the preamble to the Regulation,
         namely ‘where [the certificate] does not correctly reflect the judgment’.
      
      90.      These are issues which I have already considered in my View in Rinau(31) and more recently, and in a slightly different context, in my Opinion in Purrucker. (32) I will confine myself here to summarising the view I took in that regard, whilst referring to the arguments set out in the
         two aforementioned cases. 
      
      91.      The Regulation clearly prohibits any appeal against the issuing of the certificate. However, it does not prohibit an appeal
         against the certified judgment. Where a party takes the view that the conditions required to enable the court concerned to
         issue that judgment have not been met, it must be able to challenge the jurisdiction of that court before the court itself
         – which the mother appears to have done in this case – and, if need be, bring an appeal before a higher court. Where there
         is no legal remedy under national law in those circumstances, the court must, under the third paragraph of Article 267 TFEU,
         bring the matter before the Court of Justice. Any action or any referral to the Court in those circumstances must be dealt
         with as expeditiously as possible.
      
      92.      That conclusion answers Question 3(a) but, in Question 3(b), the referring court also asks whether, where a certified judgment
         has been issued but the validity of the certificate is disputed, the requested court may stay enforcement of the judgment
         in order to make it possible to withdraw the certificate.
      
      93.      I would point out that, in the present case, nothing in the order for reference or in the other documents submitted to the
         Court indicates that the mother pursued her challenge to the jurisdiction of the Tribunale per i Minorenni di Venezia by appealing,
         in Italy, against the judgment of 10 July 2009, the enforcement of which is requested in Austria by the father.
      
      94.      In such circumstances, it seems to me to be simply out of the question that the Austrian courts should be able to stay enforcement
         of that judgment in order to enable the mother to bring an appeal. Those courts themselves have no jurisdiction to hear an
         appeal and, as none has been brought before the court having jurisdiction, nothing in the wording or the objectives of the
         Regulation justifies delaying the enforcement of a judgment intended, it should be remembered, to secure the prompt return
         of the child.
      
      95.      Would the situation have been different if the mother had already brought such an appeal before the father sought enforcement
         of the judgment in Austria? A stay of enforcement might appear to be more justifiable in those circumstances, as the court
         of the Member State of enforcement is faced with a genuine, and no longer hypothetical, uncertainty as regards the enforceability
         of the disputed judgment. It might therefore prevent an unjustified move for the child, which would be followed either by
         a further move or by the unjustified retention of the child in the Member State of origin.
      
      96.      I am not, however, convinced that the Regulation allows such a stay of enforcement. Not only does it make no express provision
         in that regard, but, in addition, it may be inferred, from the presence elsewhere in the Regulation of a provision allowing
         a stay of proceedings in connection with an application for a declaration of enforceability of a judgment on the exercise
         of parental responsibility, (33) that that omission is intentional – an intention which is confirmed, furthermore, by the fact that the provisions of the
         current Articles 43 and 44 were subject to vigorous debate when the Regulation was drawn up, (34) yet no provision allowing a stay of enforcement was adopted.
      
      97.      Nevertheless, as with my conclusion on the possibility of challenging the judgment, (35) it seems clear to me that the parent challenging that judgment in the Member State of origin must also be able to apply,
         in that Member State, for a stay of enforcement of the judgment, which the courts of the Member State of enforcement should
         take into account.
      
      98.      In the light of the foregoing considerations, I therefore conclude that the Court’s answer to Question 3 should be that where
         a judgment certified by a court of a Member State in accordance with Article 42(2) of the Regulation is challenged on the
         ground of the lack of jurisdiction of the court of origin or of the inapplicability of Article 11(8) of the Regulation, the
         only possible legal remedy is to appeal against the judgment itself (and not against the certificate) before the courts of
         that Member State. The courts of the Member State of enforcement have no jurisdiction to refuse or stay enforcement.
      
       Question 4
      99.      If the answer to Question 1, Question 2 or Question 3(a) is in the negative, the Oberster Gerichtshof asks whether a judgment
         delivered by a court in the State of enforcement and regarded as enforceable under the law of that State, by which provisional
         custody was awarded to the abducting parent, precludes, in accordance with Article 47(2) of the Regulation, an earlier return
         order made by the State of origin under Article 11(8) of the Regulation, even if it would not prevent the enforcement of a
         return order made by the State of enforcement under the Convention.
      
      100. Before examining that question, which in the context of the main proceedings is concerned with the effects of the order of
         the Bezirksgericht Judenburg of 25 August 2009, it seems to me helpful to examine the circumstances in which that court considered
         itself to have jurisdiction to make that order.
      
      101. It is clear from the judgment of the Tribunale per i Minorenni di Venezia of 10 July 2009 that the mother initially applied
         to the Italian court for the dispute to be transferred to the Austrian courts under Article 15 of the Regulation. (36) That application was rejected on the ground, first, that the circumstances were not exceptional, but concerned an ordinary
         dispute between parents relating to the custody of their child (whereas Article 15 applies ‘[b]y way of exception’) and, secondly,
         that the child did not have a ‘particular connection’ with Austria, according to the definition set out in Article 15(3).
      
      102. That judgment falls within the jurisdiction of the Tribunale per i Minorenni di Venezia and is not at issue in this reference
         for a preliminary ruling. Nevertheless, I have certain reservations about it.
      
      103. First, it does not seem correct to me to exclude the application of Article 15 of the Regulation on the ground that the proceedings are concerned with an ordinary dispute
         between parents relating to the custody of their child. The introductory words ‘[b]y way of exception’ do not require, in
         my view, that the circumstances must be exceptional before the provision may be applied. Rather, they allow a court having
         jurisdiction to derogate from the general rules of jurisdiction and to transfer the case, or a part thereof, to a court of another Member State, with
         which the child has a particular connection, if it considers that the latter court is better placed to hear the case and that the transfer will be in the best interests of
         the child – a situation which will, in principle, be exceptional.
      
      104. Secondly, it seems to me that, contrary to the reasons given by the Tribunale per i Minorenni di Venezia, a number of the
         alternative criteria in Article 15(3) of the Regulation (fulfilment of a single one of which would have been sufficient to
         establish a ‘particular connection’) were actually met in this case. For example, it is common ground that the child had Austrian
         nationality as well as Italian nationality, satisfying condition (c) of the provision, which is not limited to cases of single
         nationality. Moreover, it seems clear that, when the transfer request was refused, the mother had established her habitual
         residence in Austria, which fulfils criterion (d). (37)
      
      105. That said, and even if the reasons given by the Tribunale per i Minorenni di Venezia may be regarded as insufficient in certain
         respects, it is clear that nothing in Article 15 of the Regulation could require that court to consider that the Bezirksgericht Judenburg was better placed to hear the case and that the transfer would have
         been in the best interests of the child, and therefore to decline jurisdiction in favour of the Austrian court. I would also
         point out that the Court has not been informed of any appeal by the mother against that transfer refusal, which would seem
         to be the normal approach for her to adopt, if she disputed the reasons given by the Tribunale per i Minorenni di Venezia.
      
      106. Next, the order for reference indicates that, without waiting to see how the Tribunale per i Minorenni di Venezia dealt with
         her request, the mother applied for custody directly to the Bezirksgericht Judenburg. On 26 May 2009, the latter accepted
         jurisdiction ‘under Article 15(5) of the Regulation’ and asked the Italian court to transfer the proceedings to it. It seems
         that it is on the basis of that acceptance of jurisdiction that the Bezirksgericht Judenburg delivered its judgment of 25
         August 2009 awarding provisional custody to the mother; the Oberster Gerichtshof seeks to ascertain whether that judgment
         may preclude enforcement of the return order of the Tribunale per i Minorenni di Venezia of 10 July 2009.
      
      107. The Court does not have the text of that judgment of 26 May 2009, but the brief summary of it provided by the Oberster Gerichtshof
         seems to indicate that the Bezirksgericht Judenburg assumed jurisdiction in breach of Article 15 of the Regulation. That article
         in no way allows a court to assume jurisdiction of its own motion. It is clear from Article 15(5) of the Regulation that before
         it can assume (38) jurisdiction in that way, a court must be seised ‘in accordance with paragraph 1(a) or 1(b)’ – that is to say, directly or
         indirectly, on the initiative of the court having jurisdiction, which stays proceedings and invites the parties to seise the
         court of another Member State, or itself requests that court to assume jurisdiction. Although it is true that a transfer request,
         made by a court of another Member State with which the child has a ‘particular connection’, is possible under paragraph 2(c),
         (39) the outcome of that request is a matter for the court having jurisdiction as to the substance of the case – and therefore
         for the court of the Member State of (former) habitual residence.
      
      108. Consequently, the jurisdiction of the Bezirksgericht Judenburg to deliver its judgment of 25 August 2009 seems to be debatable.
         If, under Article 10(b)(iv) of the Regulation, the Tribunale per i Minorenni di Venezia had lost jurisdiction at that time
         (a question which I propose to answer in the negative), it is plausible that the Bezirksgericht Judenburg would have acquired
         jurisdiction by application of the normal rule in Article 8 of the Regulation. However, it could not acquire jurisdiction
         by means of Article 15 of the Regulation, since the Tribunale per i Minorenni di Venezia did not, of its own motion, take
         any action to that effect. (40)
      
      109. In its order for reference, the Oberster Gerichtshof sets out a number of reasons why the certificate of the Bezirksgericht
         Judenburg, certifying that its judgment of 25 August 2009 had become final and enforceable, could have been wrongly granted,
         in particular because of possible defects in connection with service of the judgment. It states, however, that all other Austrian
         courts are bound by that certificate and that it may be withdrawn, where appropriate, only by the Bezirksgericht Judenburg
         itself, on application or of the court’s own motion. The Oberster Gerichtshof does not envisage the possibility that the Bezirksgericht
         Judenburg may have incorrectly assumed jurisdiction and therefore does not state whether it also has no powers to review any
         lack of jurisdiction. In any event, it seems to me that the assumption of jurisdiction under Article 15 of the Regulation
         should be open to review within the Austrian judicial system.
      
      110. Without prejudice to the above considerations, which the Oberster Gerichtshof must, where appropriate, take into account,
         I will examine Question 4 on the assumption, which is that of the Oberster Gerichtshof itself, that the judgment of the Bezirksgericht
         Judenburg of 25 August 2009 awarding provisional custody to the mother is enforceable.
      
      111. The national court explains that although, in matters relating to rights of custody, an enforceable judgment which is irreconcilable
         with a previous judgment precludes, in principle, enforcement of the latter judgment – as is expressly provided for in the
         second subparagraph of Article 47(2) of the Regulation – that is not necessarily true under national law. Indeed, the Oberster
         Gerichtshof itself recently held that a return order made in Austria under the Convention must be enforced even if it is contrary
         to a provisional custody measure taken by another Austrian court, since Article 17 of the Convention provides that the sole
         fact that a decision relating to custody has been given in the requested State is not to be a ground for refusing to return
         a child. If, under Article 47(2) of the Regulation, a return order made abroad must be treated in exactly the same way as
         the judgment of a national court, a provisional measure awarding custody cannot preclude its enforcement.
      
      112. In its question, the Oberster Gerichtshof therefore presupposes that the second subparagraph of Article 47(2) of the Regulation
         (‘a judgment which has been certified according to… Article 42(1) cannot be enforced if it is irreconcilable with a subsequent
         enforceable judgment’) refers to any subsequent enforceable judgment, including in the Member State of enforcement. The Commission
         disputes that interpretation, arguing that it would render nugatory the procedure envisaged by the legislature in Article
         11(8), which gives to the courts of the Member State of former habitual residence the last word as regards the return of a
         child. The second subparagraph of Article 47(2) of the Regulation is to be understood as meaning that a subsequent judgment
         of a court of the Member State of origin may render inoperative a judgment on return made under Article 11(8), which must therefore not be enforced.
      
      113. Although the wording of the provision does not provide the precision proposed by the Commission, I concur with its view. In
         addition to the arguments which it advances – and it is certain that Article 11(8) of the Regulation would be meaningless
         if the relevant judgment could be overridden by a subsequent judgment of the court which had already delivered the judgment
         of non-return under Article 13 of the Convention – it is clear that the ‘subsequent enforceable judgment’ can only be that
         of a court having jurisdiction. However, by definition, if it is a judgment concerning parental responsibility, the courts
         of the Member State in which the judgment under Article 11(8) of the Regulation was given have jurisdiction and not those
         of the Member State to which the child was wrongfully removed.
      
      114. At the hearing, the question was raised as to why, if the second subparagraph of Article 47(2) of the Regulation is limited
         to cases of setting aside a judgment certified in the Member State of origin, the legislature did not expressly state this,
         rather than choosing the term ‘irreconcilable’, which could also apply in the case of a judgment given subsequently in the
         Member State of enforcement. However, it seems to me that a satisfactory response was also given to that question. Even if
         we rule out the possibility that a court of the Member State of enforcement may, simply by delivering a contrary judgment,
         render inoperative the judgment which must, under Article 11(8) of the Regulation, constitute the last word on the child’s
         return, there may be other types of judgments which are irreconcilable with the return order – for example, if an order is
         made for the return of a child to a parent who, in the meantime, has been sentenced to a term of imprisonment. Moreover, it
         must be noted that Article 47 of the Regulation also applies to judgments certified under Article 41 of the Regulation, which
         are concerned with visiting rights and which may therefore also be affected by subsequent judgments of various kinds.
      
      115. In any event, the Regulation should be interpreted, in so far as possible, in a manner consistent with the Convention and,
         in particular, not in such a way that the scope of the strengthened decision-making power, granted to the courts of the Member
         State of former habitual residence by Article 11(8) of the Regulation and by the system of certification provided for in Article
         42 of the Regulation, would effectively be weakened in relation to Article 17 of the Convention, which provides, in particular,
         that the sole fact that a decision relating to custody has been given in the requested State is not to be a ground for refusing
         to return a child, but that the authorities of that State may take account of the reasons for such a decision.
      
       Question 5
      116. Finally, if the answer to Question 4 is in the negative, the Oberster Gerichtshof asks whether the State of enforcement may
         refuse to enforce a judgment in respect of which the court of origin has issued a certificate under Article 42(2) of the Regulation
         if, since its delivery, the circumstances have changed in such a way that enforcement would now constitute a serious risk
         to the best interests of the child, or whether that change of circumstances must be invoked in the State of origin, and whether
         it is possible for enforcement in the State of enforcement to be stayed pending the decision of the State of origin.
      
      117. The national court explains that the mother would probably refuse to go to Italy with the child and cannot be compelled to
         do so. Enforcement of the return order would therefore separate the child from the mother in order to hand the child over
         to the father. In accordance with Article 47(2) of the Regulation, enforcement should be carried out under the same conditions
         as would apply if the judgment had been delivered in Austria. According to the Austrian case-law, a return order made in Austria
         under the Convention cannot be enforced if a change of circumstances has resulted in a serious risk that the child might be
         exposed to physical or psychological harm, which could be the case if the child has lived for a significant length of time
         in the State of enforcement.
      
      118. In this case, the child seems to have lived for a little over a year in Italy, since the Tribunale per i Minorenni di Venezia
         made its return order one and a half years after the wrongful removal of the child to Austria. There was no contact between
         the father and child during the nine months following that order and contact was limited to visits during the preceding eighteen
         months. Accordingly, the child has spent more than two thirds of her life separated from her father. The national court considers
         that it is not inconceivable that removing the child from her mother in order to hand her over to the father might pose a
         serious risk to her psychological development and that, even though the attitude of the mother is open to criticism, this
         would not justify the risk of exposing the child to such harm. 
      
      119. It is therefore possible that such a return order made in Austria would not be enforced. Since Article 47 of the Regulation
         requires the same treatment to be applied as that pertaining to judgments delivered in the State of enforcement, the judgment
         of the Tribunale per i Minorenni di Venezia should also not be enforced. 
      
      120. However, according to the spirit and the purpose of the relevant provisions, it is for the Tribunale per i Minorenni di Venezia
         to determine whether the circumstances have changed. The issue is not enforcement per se, but the substantive justification for the return order. From that standpoint, the mother would have to make an application
         to the Tribunale per i Minorenni di Venezia to have the order made by that court set aside. Pending a decision, it should
         be permissible to stay enforcement of the order in Austria.
      
      121. In that regard, the Austrian Government points out that, according to Article 47(1) of the Regulation, the enforcement procedure
         is governed by the law of the Member State of enforcement. All the obstacles to enforcement which arise under that law must
         be taken into account. In this case, those obstacles include all the circumstances arising subsequently which might pose a
         risk to the best interests of the child. If it were for the court of the State of origin to examine such obstacles, this would
         lead to a separation of the examination of the various obstacles and to parallel jurisdiction of the courts of the two States,
         promoting neither mutual trust nor the best interests of the child, which must remain the ultimate criterion. Finally, it
         is consistent with the general scheme of the Regulation for the courts of the State of enforcement to have jurisdiction. In
         accordance with the criterion of proximity, the authorities of the State in which the child is present are more capable of
         assessing whether the circumstances have changed since the judgment was delivered.
      
      122. The Commission, on the other hand, considers that Article 47(2) of the Regulation must be interpreted taking into account
         the principle of the child’s swift return and the allocation of jurisdiction which it implies. Since the final binding judgment
         on return is a matter for the Member State of former habitual residence, the judgment of the State of enforcement should determine
         only the arrangements for enforcement. The first subparagraph of Article 47(2) of the Regulation therefore means that the
         formal requirements of the State of enforcement – for example as regards time limits, the competent services and the systems
         of penalties – are applicable to the enforcement per se, whereas the court of the Member State of origin has exclusive jurisdiction to rule on substantive arguments relating to
         the lawfulness of the enforcement order – for example to decide whether enforcement of the judgment should be stayed because,
         due a change of circumstances since the enforcement order was issued, its application would no longer be in the best interests
         of the child.
      
      123. For my part, I concur with the Commission’s view, which seems, in part, to convince the national court itself. (41) According to the general scheme of the Regulation, the final decision as to whether it is appropriate to order the return
         of the child is solely a matter for the courts of the State of former habitual residence. Since one of the courts of the State
         of wrongful removal has delivered a judgment of non-return under Article 13 of the Convention, their jurisdiction in the matter
         has been exhausted, except as regards, where appropriate, the withdrawal or setting aside of that judgment. Any subsequent
         judgment on the merits – which must take into account the grounds and evidence on the basis of which the judgment of non‑return
         was made – is a matter for the court having jurisdiction in the Member State of former habitual residence. That subsequent
         judgment must, where appropriate, be enforced in the other Member State – certainly in accordance with the procedure (that is to say the formalities) determined by its own law, but without any possibility of taking into account any substantive considerations which might preclude enforcement.
      
      124. It seems clear to me that any risk of physical or psychological harm is a substantive consideration, not a formal one. If
         the final judgment ordering the return of the child is challenged, it is therefore to the court which delivered that judgment,
         and not to that which is responsible for its enforcement, that the interested party must apply.
      
      125. As regards the possibility of staying proceedings pending the outcome of such a challenge, the considerations which I set
         out in points 93 to 97 above apply and it must be concluded that such a possibility is not available before the court of enforcement,
         but that, in the event of a challenge before the courts of the Member State of origin, they should be able to order a stay
         of enforcement pending the decision on the challenge.
      
      126. Finally, and in any event, I would point out that the referring court mentions the possibility of psychological harm resulting
         not only from the separation of the child from her father during the nine months following the judgment of the Tribunale per
         i Minorenni di Venezia of 10 July 2009, but also from the separation during the preceding eighteen months. However, even if
         enforcement of that judgment could be called into question, in any way, by subsequent developments, it could not be called
         into question on the basis of any aspect of the preceding situation, which the Tribunale per i Minorenni di Venezia must necessarily
         have taken into account. Furthermore, as regards such subsequent developments, it must be pointed out that they cannot include
         the mere passage of time if the procedure provided for by the Regulation is correctly applied, since an order made under Article
         11(8) of the Regulation is immediately enforceable, without there being any possibility of opposing its recognition.
      
       Conclusion
      127. In the light of all the foregoing considerations, I take the view that the Court should answer the questions raised by the
         Oberster Gerichtshof as follows:
      
      ‘1)      A provisional measure awarding custody of a child to the abducting parent pending the final (or lasting) judgment on custody
         is not a ‘judgment on custody that does not entail the return of the child’ within the meaning of Article 10(b)(iv) 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.
      
      2)      A return order falls within the scope of Article 11(8) of Regulation No 2201/2003 irrespective of whether or not the court
         orders return on the basis of a judgment on custody delivered by that court.
      
      3)      Where a judgment certified by a court of a Member State in accordance with Article 42(2) of Regulation No 2201/2003 is challenged
         on the ground of the lack of jurisdiction of the court of origin or of the inapplicability of Article 11(8) of that regulation,
         the only possible legal remedy is to appeal against the judgment itself (and not against the certificate) before the courts
         of that Member State. The courts of the Member State of enforcement have no jurisdiction to refuse or stay enforcement. 
      
      4)      A judgment delivered by a court in the State of enforcement, awarding provisional custody to the abducting parent, does not
         preclude the enforcement of an earlier return order made by the State of origin under Article 11(8) of Regulation No 2201/2003.
      
      5)      Where a judgment certified by a court of a Member State in accordance with Article 42(2) of Regulation No 2201/2003 is challenged
         on the ground that its enforcement would constitute a serious risk to the best interests of the child, because the circumstances
         have changed since that judgment was delivered, the only possible legal remedy is to appeal against the judgment itself (and
         not against the certificate) before the courts of that Member State. The courts of the Member State of enforcement have no
         jurisdiction to refuse or stay enforcement.’
      
      1 –	Original language: French.
      
      2 –	Regulation 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 (OJ 2003 L 338, p. 1, ‘the Regulation’).
      
      3 –	Convention on the civil aspects of international child abduction, concluded on 25 October 1980 and in force since 1 December
         1983, to which all the Member States are party (‘the Convention’). Unlike the Regulation, the Convention does not contain
         any rules of jurisdiction. In that regard, the Regulation draws on the Convention on jurisdiction, applicable law, recognition,
         enforcement and cooperation in respect of parental responsibility and measures for the protection of children, concluded at
         The Hague on 19 October 1996 (OJ 2008 L 151, p. 39). It should be noted that, under Article 60, the Regulation takes precedence
         over the Convention in so far as the latter concerns matters governed by the Regulation. 
      
      4 –	Articles 9 and 12, which relate, respectively, to the situation where a child moves lawfully to another Member State and
         to the situation where the jurisdiction of the courts of another Member State with which the child has a substantial connection
         is accepted unequivocally by all parties, are not relevant to this case.
      
      5 –      Article 53 of the Regulation provides for the designation, by each Member State, of one or more central authorities ‘to assist
         with the application of this Regulation’ (see point 22 below).
      
      6 –      Article 56 of the Regulation concerns the placement of a child in institutional care or with a foster family in another Member
         State.
      
      7 –      The text as cited here includes references only to the provisions relating to parental responsibility and excludes those relating
         to divorce, legal separation or marriage annulment, which are not relevant here.
      
      8 –	Case C‑195/08 PPU [2008] ECR I‑5271.
      
      9 –      It is not clear from the file why proceedings in Austria were pursued before two separate district courts.
      
      10 –      See footnote 36 of this View.
      
      11 –	Cited above in footnote 8.
      
      12 –	See also Rinau, cited above in footnote 8, paragraph 47 et seq., as well as my View in that case (point 15 et seq.).
      
      13 –	The Regulation is concerned both with cases of wrongful removal and cases of wrongful retention. Below, I will discuss
         only ‘wrongful removal’, as that is the situation in this case. Nevertheless, the considerations set out apply to both situations.
      
      14 –	As the Italian Government stated at the hearing, it appears that the phrase ‘“parental decision‑making power”, in particular
         the right to determine the place of residence’, used in the question referred for a preliminary ruling, is not an entirely
         correct reflection of the substance of the judgment of the Tribunale per i Minorenni di Venezia of 23 May 2008. However, it
         is common ground that that judgment indeed relates to custody of the child and does not entail her return.
      
      15 –	I wonder indeed whether this has not occurred, to some extent, in the present case. The Oberster Gerichtshof appears to
         assume that the Tribunale per i Minorenni di Venezia granted provisional custody to the mother principally in order to avoid
         the child making repeated changes of location; whereas, from my reading of the order of 23 May 2008, that court sought in
         particular to facilitate trips made by the child, with her mother, between Austria and Italy, in order to maintain contact
         with her father.
      
      16 –	See recital 12 in the preamble to the Regulation. It should be noted, furthermore, that the criterion of proximity may,
         by its very nature, produce results which vary with the passage of time.
      
      17 –	I do, however, agree with the point made by the French Government at the hearing, namely that this is not a penalty imposed
         on the ‘abducting parent’, but rather a measure which seeks to restore the legal situation which would have prevailed had
         there been no wrongful removal.
      
      18 –	See Article 21 of the Proposal for a Council Regulation, of 17 May 2002, concerning jurisdiction and the recognition and enforcement of judgments
            in matrimonial matters and in matters of parental responsibility repealing Regulation (EC) No 1347/2000 and amending Regulation
            (EC) No 44/2001 in matters relating to maintenance (COM(2002) 222 final/2), which became Article 10 of the Regulation. The wording of the provision has changed, but the substance
         is essentially the same.
      
      19 –	See points 28 and 29 above.
      
      20 –	Cited above, in footnote 3. That Convention was signed by all Member States of the European Union with the exception of
         Malta, but to date has been ratified by only eight of them, excluding the Republic of Austria and the Italian Republic. All
         of the other Member States, with the exception of the Kingdom of Denmark, have been authorised to ratify it or to accede to
         it simultaneously, in the interest of the Union (see Council Decision 2008/431/CE of 5 June 2008 authorising certain Member
         States to ratify, or accede to, in the interest of the European Community, the 1996 Hague Convention on Jurisdiction, Applicable
         Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children
         and authorising certain Member States to make a declaration on the application of the relevant internal rules of Community
         law – Convention concerning jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental
         responsibility and measures for the protection of children (OJ 2008 L 151, p. 36)).
      
      21 –	See, in particular, section II(a) of Council document 13940/02 of 8 November 2002 (paragraph 11 et seq.).
      
      22 –	It is possible that that delay can be explained by a misunderstanding of Article 11(7) of the Regulation, which provides
         for a period of three months to enable the parties to submit observations on the order on non-return; however, we do not have
         any information in that regard.
      
      23 –	Although I cite the present case as an illustration, there are also comparable circumstances in Rinau, cited above, and in Case C-256/09 Purrucker, pending before the Court. Here, I note that certain delays in the communication of the judgment of the Tribunale per i Minorenni
         di Venezia of 23 May 2008 to the Austrian courts and of the request of 26 May 2009 by the Bezirksgericht Judenburg to the
         Tribunale per i Minorenni di Venezia to transfer jurisdiction may also have contributed to the drawing out of the procedure.
      
      24 –	See my Opinion in Purrucker, cited above in footnote 23 (point 118 et seq.).
      
      25 –	Cited above in footnote 8 (in particular, paragraph 63 et seq.).
      
      26 –	First subparagraph of Article 42(2)(c) and paragraph 13 of Annex IV of the Regulation.
      
      27 –	Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement
            Order for uncontested claims (OJ 2004 L 143, p. 15)
      28 –	‘Where the debtor has ... applied for the ... withdrawal of a European Enforcement Order certificate in accordance with
         Article 10, the competent court or authority in the Member State of enforcement may, upon application by the debtor ... c)
         under exceptional circumstances, stay the enforcement proceedings’.
      
      29 –	See, for example, in the context of the Regulation, Document 7730/03 of the German delegation, of 21 March 2003, which
         argues fervently (p. 10) for the possibility of appealing against the issuing of the certificate – a position rejected, however,
         in the Regulation as adopted. In the context of Regulation No 805/2004, on the other hand, it should be noted that the initial
         Commission proposal [COM(2002) 159 final] simply, but giving full and explicit reasoning in the explanatory memorandum, provided
         that ‘there is to be no appeal’ against a decision regarding an application for a ... certificate – a position maintained
         by the Commission in its amended proposal [COM(2003) 341 final] even after the European Parliament’s proposal for an amendment
         introducing the possibility of appeal, which was, however, rejected by the Parliament and the Council in the text which was
         finally adopted.
      
      30 –	See the judgment in Rinau, cited above in footnote 8, paragraph 58 et seq. Although the immediate enforceability provided for in Articles 42 and 47
         of the Regulation does not apply to such an order, the recognition and enforcement procedures laid down for other judgments
         in Article 28 et seq may apply to it.
      
      31 –	Cited above in footnote 8; see, in particular, points 85 to 96 of the View.
      
      32 –	Cited above in footnote 23; see, in particular, points 127, 128 and 148 to 154 of the Opinion.
      
      33 –	Article 35 of the Regulation, in Section 2 of Chapter III, which does not apply to judgments ordering the return of the
         child, governed by Section 4.
      
      34 –	See Document 7730/03 of the German delegation, of 21 March 2003, cited above in footnote 29. It was then Article 48 of
         the draft regulation.
      
      35 –	See point 91 above.
      
      36 –	From the reference to Article ‘15(b)(5)’, it is not clear whether the Tribunale per i Minorenni di Venezia sought to refer
         to Article 15(1)(b), (2)(b), or (3)(b) of the Regulation, each of which could be relevant, as appropriate. However, the most
         plausible explanation seems to be that the mother applied to that court, under paragraph 1(b), to request the Bezirksgericht
         Judenburg ‘to assume jurisdiction in accordance with paragraph 5’.
      
      37 –	I would also point out that the child had habitually resided in Austria for more than half her life (whether or not she
         had acquired a new ‘habitual residence’ within the meaning of the Regulation), which might possibly satisfy condition (b)
         according to the French wording but not necessarily under that of the other language versions.
      
      38 –	I note that the English version of the Regulation provides, more clearly, that the relevant court accepts jurisdiction and not that it assumes jurisdiction.
      
      39 –	It appears from the judgment of the Tribunale per i Minorenni di Venezia of 10 July 2009 that the Bezirksgericht Judenburg
         actually made such a request, though at the same time as it assumed jurisdiction and therefore without awaiting the response
         to that request.
      
      40 –	I would also point out that Article 15 applies only if the court which transfers the case itself has jurisdiction. On the
         basis of that article, the Bezirksgericht Judenburg therefore, implicitly but necessarily, recognised the jurisdiction of
         the Tribunale per i Minorenni di Venezia on 26 May 2009.
      
      41 –	See point 120 above.