Doris Povse v Mauro Alpago.
Date: 2010-07-01
35. The national court stated that the reason for its request that the reference for a preliminary ruling be dealt with under the urgent procedure provided for in Article 104b of the Rules of Procedure was that contact between the child and her father had been broken. Consequently, a delayed decision on enforcement of the judgment of the Tribunale per i Minorenni di Venezia of 10 July 2009 ordering return of the child to Italy would exacerbate the deterioration of the relationship between father and child and thereby increase the risk of psychological harm if the child were sent back to Italy.
43. In that regard, it must be recalled that the regulation seeks to deter child abductions from one Member State to another and, in cases of abduction, to obtain the child’s return without delay (see Rinau , paragraph 52).
53. It is true that Article 11(7) provides that the court or central authority of the Member State where the child was previously habitually resident must notify the parties of information it receives concerning an order of non-return made in the Member State of removal and invite them to make submissions ‘so that the court can examine the question of custody of the child’. None the less, that provision merely indicates the final objective of the administrative and judicial procedures, namely regularisation of the child’s situation. It cannot be inferred from that provision that a decision on the custody of the child is a prerequisite for the adoption of a decision ordering the return of the child. Indeed, the purpose of that interim decision is also to contribute to achievement of the final objective, in particular, resolving the issue of custody of the child.
56. The Court has held that, although intrinsically connected with other matters governed by the regulation, in particular rights of custody, the enforceability of a judgment requiring the return of a child following a judgment of non‑return has procedural autonomy, so as not to delay the return of a child who has been wrongfully removed. The Court has also confirmed the procedural autonomy of the provisions of Articles 11(8), 40 and 42 of the regulation and the priority given to the jurisdiction of the court of origin, in the context of Section 4 of Chapter III of the regulation (see, to that effect, Rinau , paragraphs 63 and 64).
59. It must be borne in mind that, before making that judgment, the court which has jurisdiction must take into consideration the reasons for and evidence underlying the decision of non–return. The consideration of those matters is one reason why such a judgment, once it is made, is enforceable, in accordance with the principle of mutual trust which underpins the regulation.
64. One of the fundamental rights of the child is the right, set out in Article 24(3) of the Charter of Fundamental Rights of the European Union, proclaimed at Nice on 7 December 2000 (OJ 2000 C 364, p. 1), to maintain on a regular basis a personal relationship and direct contact with both parents, respect for that right undeniably merging into the best interests of any child (see Case C‑403/09 PPU Detiček  [2009] ECR I‑0000, paragraph 54). It is clear that an unlawful removal of the child, following the taking of a unilateral decision by one of the child’s parents, more often than not deprives the child of the possibility of maintaining on a regular basis a personal relationship and direct contact with the other parent (see Detiček , paragraph 56).
70. As is clear from Recital 24 and Articles 42(1) and 43(2) of the regulation, the issue of a certificate is not subject to appeal, and a judgment thus certified is automatically enforceable, there being no possibility of opposing its recognition.
73. It follows from the foregoing provisions, which establish a clear division of jurisdiction between the courts of the Member State of origin and those of the Member State of enforcement and are intended to secure the rapid return of the child, that a certificate issued under Article 42 of the regulation, which gives to the judgment thus certified a specific enforceability, is not subject to any appeal. The requested court can do no more than declare such a judgment to be enforceable, since the only pleas in law which can be relied on in relation to the certificate are those to support an action for rectification or doubts as to its authenticity, according to the rules of law of the Member State of origin (see, to that effect, Rinau , paragraphs 85, 88 and 89). The only rules of law of the requested Member State that are applicable are those governing procedural matters.
74. On the other hand, questions concerning the merits of the judgment as such, and in particular the question whether the necessary conditions enabling the court with jurisdiction to hand down that judgment are satisfied, including any challenges to its jurisdiction, must be raised before the courts of the Member State of origin, in accordance with the rules of its legal system. Likewise, an application to suspend enforcement of a certified judgment can be brought only before the court which has jurisdiction in the Member State of origin, in accordance with the rules of its legal system.