Inga Rinau.
Date: 2008-07-11
44. The referring court reasoned that request by reference to recital 17 in the preamble to the Regulation, which refers to the return without delay of a child which has been removed or retained, and to Article 11(3) of that regulation, which sets a deadline of six weeks for the court to which an application for return is made to issue its judgment. The referring court finds that it is necessary to act urgently on the ground that any delay would be very unfavourable to the relationship between the child and the parent with whom she does not live. The damage to that relationship could be irreparable.
48. The 1980 Hague Convention was adopted on the basis that the interests of children are of paramount importance in matters relating to their custody and that it is necessary 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.
50. Under recital 21 in the preamble thereto, the Regulation is based on the idea that the recognition and enforcement of judgments given in a Member State must be based on the principle of mutual trust and the grounds for non-recognition must be kept to the minimum required.
51. According to recitals 12 and 13 in the preamble thereto, the Regulation is based on the idea that the best interests of the child must prevail and, under recital 33, the Regulation seeks to ensure respect for the fundamental rights of the child, as set out in Article 24 of the Charter of Fundamental Rights of the European Union.
52. The Regulation seeks, in particular, to deter child abductions between Member States and, in cases of abduction, to obtain the child’s return without delay.
54. Pursuant to Article 60, the Regulation is to take precedence over the 1980 Hague Convention.
63. 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 enjoys procedural autonomy, so as not to delay the return of a child who has been wrongfully removed to or retained in a Member State other than that in which that child was habitually resident immediately before the wrongful removal or retention.
64. The procedural autonomy of the provisions in 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, are reflected in Articles 43 and 44 of the Regulation, which provide that the law of the Member State of origin is to be applicable to any rectification of the certificate, that no appeal is to lie against the issuing of a certificate and that that certificate is to take effect only within the limits of the enforceability of the judgment.
81. If the position were otherwise, there would be a risk that the Regulation would be deprived of its useful effect, since the objective of the immediate return of the child would remain subject to the condition that the redress procedures allowed under the domestic law of the Member State in which the child is wrongfully retained have been exhausted. That risk should be particularly balanced because, as far as concerns young children, biological time cannot be measured according to general criteria, given the intellectual and psychological structure of such children and the speed with which that structure develops.
82. Even if the object of the Regulation is not to unify the rules of substantive law and of procedure of the different Member States, it is nevertheless important that the application of those national rules does not prejudice its useful effect (see, by analogy, as regards the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, Case C‑365/88 Hagan  [1990] ECR I‑1845, paragraphs 19 and 20; Case C‑68/93 Shevill and Others  [1995] ECR I‑415, paragraph 36; and Case C‑159/02 Turner  [2004] ECR I‑3565, paragraph 29).
84. Moreover, it is backed up by two elements. The first is based on the words ‘any subsequent judgment which requires the return of the child’ in Article 11(8) of the Regulation, words which express the idea that, once the non‑return decision has been taken, the court of origin may be required to take one or more decisions in order to obtain the return of the child, including in situations where there is a procedural or factual impasse. The second element is of a systemic nature and rests on the fact that, contrary to the procedure laid down in Articles 33 to 35 of the Regulation in respect of the application for a declaration of enforceability, judgments issued in accordance with Section 4 of Chapter III thereof (rights of access and return of the child) may be declared enforceable by the court of origin irrespective of any possibility of appeal, whether in the Member State of origin or in that of enforcement.
85. By excluding any appeal against the issuing of a certificate pursuant to Article 42(1), other than an action seeking rectification within the meaning of Article 43(1), the Regulation seeks to ensure that the effectiveness of its provisions is not undermined by abuse of the procedure. Moreover, Article 68 does not list among the redress procedures any appeal against decisions taken pursuant to Section 4 of Chapter III of the Regulation.
88. It remains to be pointed out that, since no doubt has been expressed as regards the authenticity of the certificate issued by the Amtsgericht Oranienburg, and since that certificate contains all the elements required by Article 42 of the Regulation, an appeal against the issue of the certificate or opposition to its recognition could, under Article 43(2) of the Regulation, only have been dismissed, the requested court being able only to declare the enforceability of the certified decision.
89. In the light of the foregoing observations, the answer to the fourth to sixth questions must be that, once a non‑return decision has been taken and brought to the attention of the court of origin, it is irrelevant, for the purposes of issuing the certificate provided for in Article 42 of the Regulation, that that decision has been suspended, overturned, set aside or, in any event, has not become res judicata  or has been replaced by a decision ordering return, in so far as the return of the child has not actually taken place. Since no doubt has been expressed as regards the authenticity of that certificate and since it was drawn up in accordance with the standard form set out in Annex IV to the Regulation, opposition to the recognition of the decision ordering return is not permitted and it is for the requested court only to declare the enforceability of the certified decision and to allow the immediate return of the child.
The first question
91. The answer to the fourth to sixth questions precludes the possibility of an application for non‑recognition in the event that a decision requiring the return of the child has been adopted and certified in accordance with Articles 11(8) and 42 of the Regulation.
97. Therefore, the answer to the first question must be that, except where the procedure concerns a decision certified pursuant t o Articles 11(8) and 40 to 42 of the Regulation, any interested party can apply for non‑recognition of a judicial decision, even if no application for recognition of the decision has been submitted beforehand.
The second question
99. The reservation expressed in paragraph 91 of this judgment also applies in the context of this question.