Parent-child relationship cases are among the most difficult disputes to litigate
– and no wonder. After all, the strongest feelings of all are here at stake. At the same time, the child is the most vulnerable of legal subjects. The Convention on the Rights of the Child, adopted by resolution of the U.N. General Assembly on November 20, 1989 (UNTS vol. 1577, p.3), assumes that the welfare of the child is at the top of values within legal systems-
In all actions concerning children, whether undertaken by public or private social welfare institutions,
courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
This is stipulated in its Article 4(1).
The best interests of the child, important as they might be to the authorities of the States-Parties, do not always play an important role in its parents’ eyes. In disputes surrounding e.g. divorces, separations and even more serious quarrels, the child can be instrumentalized and held hostage in order to punish the other party or coerce it into certain concessions.
The system of domestic and international law
seeks to counter similar cases
and that is why, in addition to the classic instruments of criminal or civil law, international treaty law also provides for a special instrument to prevent parents from unilateral actions. This is the Hague Convention on the Civil Aspects of International Child Abduction (or simply the “Hague Abduction Convention” – HAC) dated 25 October 1980.
Principally, the idea of the 1980 Abduction Convention is simple: the left-behind parent can request the child’s return to the country of its habitual residence before its having been taken abroad to another jurisdiction. Thus, the abducting parent should be deprived of the benefits of violating the right to decide in which country the child may reside. Pursuant to Article 12 of the HAC-
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. […]
The return of the child should not be opposed, except for particular reasons for its dismissal set forth in Articles 13 and 20 of the HAC, namely-
- 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
- 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; or
- 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; or
- the return of the child would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.
The grounds for refusal of the child’s return
play an increasingly important role in legal practice,
especially in view of the fact of declining trust in legal relations between jurisdictions and the growing phenomenon of so-called judicial populism. The existing body of the European Court of Human Rights‘ case law in matters of the Hague Abduction Convention invites the courts of the States-Parties to the ECHR to carry out an ‘in-depth examination’ of the reasons against the return.
All its being taken into account, the HAC turns out to be increasingly ineffective.
Private international law of the EU
seeks to strengthen the chances for the child’s return
in a twofold way.
Firstly, Article 9 of the Council Regulation No. 1111/2019 (called the “Brussels IIter“) generally prevents the courts of the Member State of the wrongful removal or retention from exercising jurisdiction in matters of parental responsibility over the child.
Secondly, Article 29 of the Regulation sets up a particular regime of issuing and enforcing judicial decisions refusing the return of a child to another Member State. It is commonly referred to as the ‘overriding mechanism‘. Thus, if a court in the Member State of wrongful removal or retention refuses to return solely on the basis of paragraph (b) of Article 13(1), or under Article 13(2) of the HAC, a ‘second chance’ to order the child’s return to the Member State of habitual residence prior to the removal or retention is nevertheless possible.
It is enough to have an overriding decision in matters of right of custody
accompanied by the certificate of enforceability.
Basically, such a judgment or an order shall not be opposed in the Member State of wrongful removal or retention. All measures aiming at rectification or withdrawal of the decision on return must be filed in the Member State of origin. As to the Member State of child’s removal or retention, it is openly provided that-
No challenges other than those referred to in Article 48 shall lie against the issuance of the certificate.
It should be noted that originally, the ‘overriding mechanism’ has not been newly enacted in the Brussels IIter Regulation; it predates it and comes from the provisions of the Brussels IIbis Regulation No. 2201/2003, against which it has only been slightly improved.
Unfortunately, there is some evidence that
Polish case law aims at diminishing
the operativeness of the discussed institution.
In some Supreme Court judgments, it was found that the court in a Member State of child’s wrongful removal or retention may examine the grounds for issuing the certificatel of enforceability, now listed in Article 47(3) of the Brussels IIter. Most interestingly, it seems that the Polish Court came to such conclusions in defiance of EU law!
Already in the leading judgment of 11/07/2008, C-195/08 PPU, Inga Rinau (EU:C:2008:406), the Court of Justice stressed that the purpose of, among other things, Article 42(2) of Regulation No. 2201/2003 is-
78. [….] not only to secure the immediate return of the child to the Member State where he or she was habitually resident immediately before the wrongful removal or retention, but also to enable the court of origin to assess the reasons for and evidence underlying the non‑return decision issued.
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85. By excluding any appeal against the issuing of a certificate pursuant to Article 42(1) [of the Brussels IIbis], other than an action seeking rectification within the meaning of Article 43(1) [of the Brussels IIbis], 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.
The above interpretation is clearly confirmed in the judgment of the Court of Justice of 01/07/2010, C-211/10 PPU, Doris Povse v Mauro Alpago–
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.
75. Accordingly, no plea in law can be raised before the courts of the Member State of removal challenging the enforcement of such a judgment, since the rules of law of that State govern solely matters of procedure, as provided for in Article 47(1) of the regulation, namely the arrangements for enforcement of the judgment. However, proceedings such as those which are the subject of this question are concerned neither with formal requirements nor matters of procedure, but rule on matters of substance.
Thus, in para (4) of the operative part of the judgment, the Court of Justice openly found that-
Enforcement of a certified judgment cannot be refused in the Member State of enforcement because, as a result of a subsequent change of circumstances, it might be seriously detrimental to the best interests of the child. Such a change must be pleaded before the court which has jurisdiction in the Member State of origin, which should also hear any application to suspend enforcement of its judgment.
Finally, in its judgment of 22/12/2010, C-491/10 PPU, Joseba Andoni Aguirre Zarraga v Simone Pelz, the Court set out the interpretation of the appropriate rules of the Brussels IIbis-
48. … it is apparent from Articles 42(1) and 43(2) of Regulation No 2201/2003, interpreted in the light of recitals 17 and 24 in the preamble to that regulation, that a judgment ordering the return of a child handed down by the court with jurisdiction pursuant to that regulation, where it is enforceable and has given rise to the issue of the certificate referred to in the said Article 42(1) in the Member State of origin, is to be recognised and is to be automatically enforceable in another Member State, there being no possibility of opposing its recognition (see, to that effect, Rinau, paragraph 84, and Povse, paragraph 70).
49. Consequently, the court of the Member State of enforcement can do no more than declare that a judgment thus certified is enforceable.
50. Furthermore, only in accordance with the legal rules of the Member State of origin can an action seeking rectification of the certificate issued by the court of origin be brought or questions raised as to the authenticity of that certificate (see, to that effect, Povse, paragraph 73 and case-law cited). Moreover, in order to secure the expeditious enforcement of the judgments concerned and to ensure that the effectiveness of the provisions of Regulation No 2201/2003 is not undermined by abuse of the procedure, any appeal against the issuing of a certificate pursuant to Article 42 of that regulation, other than an action seeking rectification within the meaning of Article 43(1) of the regulation, is excluded, even in the Member State of origin (see, to that effect, Rinau, paragraph 85).
[…]
56. It follows that, where a court of a Member State issues the certificate referred to in Article 42, the court of the Member State of enforcement is obliged to enforce the judgment which is so certified, and it has no power to oppose either the recognition or the enforceability of that judgment.
Thus, it appears that the CJEU rulings clearly prohibit the review of follow-up rulings providing for the return of a child to another Member State. Neither the judgment itself nor the certificate of enforceability can be reviewed in the Member State of enforcement.