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Case Name
Aguirre Zarraga v. Pelz (C?491/10 PPU)
INCADAT reference
HC/E/DE 1043
Court
Court of Justice of the European Union
Court of Justice of the European Union (CJEU)
A. Tizzano (Rapporteur), President of the Chamber, J. J. Kasel, M. Ileši?, E. Levits and M. Safjan, Judges
States involved
SPAIN
GERMANY
Decision
22 December 2010
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Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)
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Arts 10, 11, 42 of Brussels II a Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)
Case C 195/08 PPU Rinau [2008] ECR I 5271; Case C 403/09 PPU Deti?ek [2009] ECR I 0000; Case C 211/10 PPU Povse [2010] ECR I 0000; Case C 400/10 PPU McB. [2010] ECR I 0000.
INCADAT comment
Inter-Relationship with International / Regional Instruments and National Law
Brussels II a Regulation
SUMMARY
Summary available in
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Facts
On 12 May 2008 the Juzgado de Primera Instancia e Instrucción No 5 de Bilbao (Court of First Instance and Preliminary Investigations No 5 of Bilbao) provisionally awarded custody to the father and access to the mother. In June 2008, the mother moved to Germany and settled there with her new partner. Following a period of contact in Germany in the summer of 2008, the mother retained the child.
On 15 October 2008, the Bilbao court issued a judgment for provisional measures, which included prohibiting the child from leaving Spain and suspending the mother's access.
In July 2009 the custody proceedings were continued in the Bilbao court. A fresh expert report was ordered and it was held that the views of the child should be ascertained. However, the Court refused the mother's request that she and the child be allowed to leave Spain were they to attend. Consequently, neither did participate in the subsequent hearing, for the Court equally declined to allow evidence to be given by video conference.
On 16 December 2009 the Bilbao court awarded sole custody to the father. The mother appealed, including a request that the child be heard. On 21 April 2010 the Audiencia Provincial de Bizkaya (Biscay Provincial Court) dismissed the latter request on the ground that, according to Spanish rules of procedure, the production of evidence on appeal was possible only in certain circumstances expressly defined by legislation.
Whilst the Spanish proceedings were on-going the father brought proceedings in Germany. First, he petitioned for the return of his daughter to Spain, on the basis of the 1980 Hague Child Abduction Convention.
That application was upheld by the Familiengericht Celle (Family Court of Celle) on 30 January 2009, but overturned on appeal by the Oberlandesgericht Celle (Higher Regional Court of Celle) on 1 July 2009, the court relying on Article 13(2), the child's clear objections to a return.
A second set of proceedings was initiated by the issue of a certificate on 5 February 2010 by the Bilbao Court pursuant to Article 42 of the Brussels II a Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003) on the basis of the divorce order which it had issued on 16 December 2009, when that court had also made an order relating to rights of custody in respect of the child.
Judgment and certificate were forwarded to the Familiengericht Celle. On 28 April 2010 the latter court held that the judgment was neither to be recognised nor enforced, on the ground that the Spanish court had not heard the child before handing down its judgment. The father appealed to the Oberlandesgericht Celle which decided to stay the proceedings and to refer the following questions to the Court of Justice of the European Union (CJEU) for a preliminary ruling:
"1. Where the judgment to be enforced issued in the Member State of origin contains a serious infringement of fundamental rights, does the court of the Member State of enforcement exceptionally itself enjoy a power of review, pursuant to an interpretation of Article 42 of [Regulation No 2201/2003] in conformity with the Charter of Fundamental Rights?
2. Is the court of the Member State of enforcement obliged to enforce the judgment of the court of the Member State of origin notwithstanding the fact that, according to the case-file, the certificate issued by the court of the Member State of origin under Article 42 of [Regulation No 2201/2003] contains a declaration which is manifestly inaccurate?"
Ruling
Grounds
Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)
The CJEU noted that Regulation No 2201/2003 had set up a system whereby, in the event that there is a difference of opinion between the court where the child is habitually resident and the court where the child is wrongfully present, the former retains exclusive jurisdiction to decide whether the child is to be returned.
To this end a certified judgment ordering the return of a child handed down by the court with jurisdiction in the Member State of origin pursuant to Article 42, is to be recognised and is to be automatically enforceable in another Member State, there being no possibility of opposing its recognition. Consequently, the court of the Member State of enforcement can do no more than declare that a judgment thus certified is enforceable.
The Court confirmed that there was no basis under Article 42(2) for the court of the Member State of enforcement to review the conditions for the issue of the certificate. Such a power could undermine the effectiveness of the system set up by the Regulation.
Turning to the views of the child, the Court noted that before an Article 42 certificate could be issued the court of the Member State of origin must ensure that the judgment was made with due regard to the child's right to freely express his or her views and that a genuine and effective opportunity to express those views was offered to the child, taking into account the procedural means of national law and the instruments of international judicial cooperation.
However, it equally noted that it was solely for the national courts of the Member State of origin to examine the lawfulness of that judgment. This was because the Regulation's recognition and enforcement system was based on the principle of mutual trust between Member States in the fact that their respective national legal systems are capable of providing an equivalent and effective protection of fundamental rights, recognised at European Union level, in particular, in the Charter of Fundamental Rights.
Consequently, the answer to the questions referred was that, in circumstances such as those of the main proceedings, the court with jurisdiction in the Member State of enforcement cannot oppose the enforcement of a certified judgment, ordering the return of a child who has been wrongfully removed, on the ground that the court of the Member State of origin which handed down that judgment may have infringed Article 42 of Regulation No 2201/2003, interpreted in accordance with Article 24 of the Charter of Fundamental Rights, since the assessment of whether there is such an infringement falls exclusively within the jurisdiction of the courts of the Member State of origin.
Author of the summary: Peter McEleavy
INCADAT comment
Brussels II a Regulation
The application of the 1980 Hague Convention within the Member States of the European Union (Denmark excepted) has been amended following the entry into force 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, see:
Affaire C-195/08 PPU Rinau v. Rinau, [2008] ECR I 5271 [2008] 2 FLR 1495 [Référence INCADAT : HC/E/ 987];
Affaire C 403/09 PPU Detiček v. Sgueglia, [Référence INCADAT : HC/E/ 1327].
The Hague Convention remains the primary tool to combat child abductions within the European Union but its operation has been fine tuned.
An autonomous EU definition of ‘rights of custody' has been adopted: Article 2(9) of the Brussels II a Regulation, which is essentially the same as that found in Article 5 a) of the Hague Child Abduction Convention. There is equally an EU formula for determining the wrongfulness of a removal or retention: Article 2(11) of the Regulation. The latter embodies the key elements of Article 3 of the Convention, but adds an explanation as to the joint exercise of custody rights, an explanation which accords with international case law.
See: Case C-400/10 PPU J Mc.B. v. L.E, [INCADAT cite: HC/E/ 1104].
Of greater significance is Article 11 of the Brussels II a Regulation.
Article 11(2) of the Brussels II a Regulation requires that when applying Articles 12 and 13 of the 1980 Hague Convention that the child is given the opportunity to be heard during the proceedings, unless this appears inappropriate having regard to his age or degree of maturity.
This obligation has led to a realignment in judicial practice in England, see:
Re D. (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 A.C. 619 [INCADAT cite: HC/E/UKe 880] where Baroness Hale noted that the reform would lead to children being heard more frequently in Hague cases than had hitherto happened.
Re M. (A Child) (Abduction: Child's Objections to Return) [2007] EWCA Civ 260, [2007] 2 FLR 72, [INCADAT cite: HC/E/UKe 901]
The Court of Appeal endorsed the suggestion by Baroness Hale that the requirement under the Brussels II a Regulation to ascertain the views of children of sufficient age of maturity was not restricted to intra-European Community cases of child abduction, but was a principle of universal application.
Article 11(3) of the Brussels II a Regulation requires Convention proceedings to be dealt with within 6 weeks.
Klentzeris v. Klentzeris [2007] EWCA Civ 533, [2007] 2 FLR 996, [INCADAT cite: HC/E/UKe 931]
Thorpe LJ held that this extended to appeal hearings and as such recommended that applications for permission to appeal should be made directly to the trial judge and that the normal 21 day period for lodging a notice of appeal should be restricted.
Article 11(4) of the Brussels II a Regulation provides that the return of a child cannot be refused under Article 13(1) b) of the Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his return.
Cases in which reliance has been placed on Article 11(4) of the Brussels II a Regulation to make a return order include:
France
CA Bordeaux, 19 janvier 2007, No 06/002739 [INCADAT cite: HC/E/FR 947];
CA Paris 15 février 2007 [INCADAT cite: HC/E/FR 979].
The relevant protection was found not to exist, leading to a non-return order being made, in:
CA Aix-en-Provence, 30 novembre 2006, N° RG 06/03661 [INCADAT cite: HC/E/FR 717].
The most notable element of Article 11 is the new mechanism which is now applied where a non-return order is made on the basis of Article 13. This allows the authorities in the State of the child's habitual residence to rule on whether the child should be sent back notwithstanding the non-return order. If a subsequent return order is made under Article 11(7) of the Regulation, and is certified by the issuing judge, then it will be automatically enforceable in the State of refuge and all other EU-Member States.
Article 11(7) Brussels II a Regulation - Return Order Granted:
Re A. (Custody Decision after Maltese Non-return Order: Brussels II Revised) [2006] EWHC 3397 (Fam.), [2007] 1 FLR 1923 [INCADAT cite: HC/E/UKe 883]
Article 11(7) Brussels II a Regulation - Return Order Refused:
Re A. H.A. v. M.B. (Brussels II Revised: Article 11(7) Application) [2007] EWHC 2016 (Fam), [2008] 1 FLR 289, [INCADAT cite: HC/E/UKe 930].
The CJEU has ruled that a subsequent return order does not have to be a final order for custody:
Case C-211/10 PPU Povse v. Alpago, [INCADAT cite: HC/E/ 1328].
In this case it was further held that the enforcement of a return order cannot be refused as a result of a change of circumstances. Such a change must be raised before the competent court in the Member State of origin.
Furthermore abducting parents may not seek to subvert the deterrent effect of Council Regulation 2201/2003 in seeking to obtain provisional measures to prevent the enforcement of a custody order aimed at securing the return of an abducted child:
Case C 403/09 PPU Detiček v. Sgueglia, [INCADAT cite: HC/E/ 1327].
For academic commentary on the new EU regime see:
P. McEleavy ‘The New Child Abduction Regime in the European Community: Symbiotic Relationship or Forced Partnership?' [2005] Journal of Private International Law 5 - 34.