Health Service Executive v S.C. and A.C.
Date: 2012-04-26
57. It follows from recital 5 in the preamble to the Regulation that, to ensure equal treatment for all children, the Regulation covers all decisions on parental responsibility, including measu res for the protection of the child (Case C‑435/06 C [2007] ECR I‑10141, paragraphs 47 and 48).
59. Article 2(7) of the Regulation defines ‘parental responsibility’ as ‘all rights and duties relating to the person or the property of a child which are given to a natural or legal person by judgment, by operation of law or by an agreement having legal effect’. That concept, which is to be given a broad definition ( C , paragraph 49), includes ‘rights of custody and rights of access’, rights of custody meaning rights and duties relating to the care of the person of a child, and, in particular, the right to determine the child’s place of residence, in accordance with Article 2(9) of the Regulation. Under Article 2(8) of the Regulation, ‘any person having parental responsibility over a child’ is a holder of parental responsibility. It is of no consequence if rights of custody have been transferred, as in the main proceedings, to an administrative authority.
60. The concept of ‘civil matters’ for the purposes of Article 1(1)(b) of the Regulation must be interpreted as meaning that it may even include measures which, from the point of view of the legal system of a Member State, fall under public law ( C , paragraph 51). The Court has thus ruled that a judgment in one Member State ordering that a child be taken into care and placed with a foster family residing within the jurisdiction of another Member State is covered by the term ‘civil matters’, where that decision was adopted in the context of public law rules relating to child protection (Case C‑523/07 A [2009] ECR I‑2805, paragraph 29).
61. Article 1(2)(d) of the Regulation provides that such matters may deal with ‘the placement of the child in a foster family or in institutional care’.
63. Admittedly, Article 1(2)(d) and Article 56 of the Regulation do not expressly refer to judgments of the courts of a Member State ordering the placement of a child in institutional care in another Member State where that placement includes a period of deprivation of liberty for therapeutic and educational purposes. However, that circumstance does not exclude those judgments from the scope of the Regulation. It is clear from paragraph 30 of C that the list contained in Article 1(2) of the Regulation is not exhaustive and is to be used as a guide, as indicated by the use of the words ‘in particular’.
79. However, as emphasised in particular by A.C. and the Commission, the requested State must ensure that its national legislation does not undermine the objectives of the Regulation or render it ineffective.
101. As is stated in recital 2 of the preamble to the Regulation, the principle of mutual recognition of judicial decisions is the cornerstone for the creation of a genuine judicial area (Case C‑256/09 Purrucker [2010] ECR I‑7353, paragraph 70).
103. It is that mutual trust which has enabled a compulsory system of jurisdiction to be established, which all the courts within the purview of the Regulation are required to respect, and as a corollary the waiver by Member States of the right to apply their internal rules on recognition and enforcement of foreign judgments in favour of a simplified mechanism for the recognition and enforcement of decisions handed down in matters of parental responsibility ( Purrucker , paragraph 72). As is stated in Article 24 of the Regulation, the courts of the other Member States may not review the assessment made by the first court of its jurisdiction. Further, Article 26 of the Regulation provides that under no circumstances may a judgment be reviewed as to its substance.
117. Consequently, the issue of the certificate in the Member State of origin, referred to in Article 42(1) of the Regulation, is to be recognised and is to be automatically enforceable in another Member State, there being no possibility of opposing its recognition (Case C‑491/10 PPU Aguirre Zarraga  [2010] ECR I‑14247, paragraph 48).
125. In that regard, in order to ensure that the requirement under Article 31 of the Regulation that there be no delay cannot be undermined by the suspensive effect of an appeal brought against a decision on a declaration of enforceability, it is appropriate, as observed by the Advocate General in her view, and as proposed by the Commission at the hearing, that the Regulation be interpreted as meaning that a placement order is to become enforceable at the point in time when the court of the requested Member State declares, in accordance with Article 31, that that order is enforceable.
128. Further, the Court has ruled 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 (Case C‑195/08 PPU Rinau [2008] ECR I‑5271, paragraph 84).
129. It follows from the foregoing that, in order not to deprive the Regulation of its effectiveness, the decision of the court of the requested Member State on an application for a declaration of enforceability must be taken with particular expedition, and appeals brought against such a decision of the court of the requested Member State must not have a suspensive effect.
130. Moreover, Article 20(1) of the Regulation provides that the courts of a Member State where a child is present may, subject to certain conditions, take such provisional, including protective, measures as may be available under the law of that State, even if, under the Regulation, a court of another Member State had jurisdiction as to the substance of the matter. In that it is an exception to the system of jurisdiction laid down by the Regulation, that provision must be interpreted strictly (Case C‑403/09 PPU Detiček [2009] ECR I‑12193, paragraph 38).
142. In that regard, in the context of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1), the Court has ruled that there is no reason for granting to a judgment, when it is enforced, rights which it does not have in the Member State of origin or effects that a similar judgment given directly in the requested Member State would not have (Case C‑420/07 Apostolides  [2009] ECR I‑3571, paragraph 66, and Case C‑139/10 Prism Investments  [2011] ECR I‑9511, paragraph 38).