EUPillar C-211/10 PPU Doris Povse v Mauro Alpago (Third Chamber) [2010] ECR I-06673

Summary

Unmarried parents of a child born in Italy had joint custody. When the couple separated, the father obtained a provisional order preventing the mother leaving Italy with the child. Nevertheless, in February 2008 the mother took the child to live in Austria. The father initiated return proceedings in Austria and shortly thereafter the Italian court revoked the prohibition on the mother leaving Italy, provisionally awarded custody to both parents, and decided that the child could reside in Austria pending a final decision. The father was awarded contact. The father’s return application in Austria was refused. Later an Italian court ordered the immediate return of the child to Italy and certified this order pursuant to Art 42 of Brussels IIa. The Italian court stated it had jurisdiction under Art 10. The father applied to the Austrian courts for enforcement of the Italian return order and an Austrian court submitted the following questions to the CJEU: 1) Is a ‘judgment on custody that does not entail the return of the child’ (see Art 10(b)(iv)) also to be understood as meaning a provisional measure awarding in particular the right to determine the place of residence to the abducting parent pending the final judgment on custody? 2) Does a return order issued by a court fall within the scope of Article 11(8) even if the basis of that return order is not a final custody judgment delivered by that court? 3) If Question 1 or 2 is answered in the affirmative: a) Can the lack of jurisdiction of the court of origin or the inapplicability of Article 11(8) be relied on in the second State as against the enforcement of a judgment in respect of which the court of origin has issued a certificate in accordance with Article 42(2)? b) Or, in such circumstances, must the opposing party apply for that certificate to be revoked in the State of origin, thereby allowing enforcement in the second State to be stayed pending the decision in the State of origin? 4) If Questions 1 and 2 or Question 3(a) are/is answered in the negative: Does a judgment delivered by a court in the second State and regarded as enforceable under the law of that State, by which provisional custody was awarded to the abducting parent, preclude the enforcement of an earlier return order made in the State of origin under Article 11(8), in accordance with Article 47(2), even if it would not prevent the enforcement of a return order made in the second State under the Hague Convention? 5) If Question 4 is also answered in the negative: a) Can the second State refuse to enforce a judgment in respect of which the court of origin has issued a certificate under Article 42(2) of if, since its delivery, the circumstances have changed in such a way that enforcement would now constitute a serious risk to the best interests of the child? b) Or must the opposing party invoke that change of circumstances in the State of origin, thereby allowing enforcement in the second State to be stayed pending the judgment in the State of origin? The CJEU held that 1) A provisional measure did not constitute a ‘judgment on custody …’ and could not be the basis of a transfer of jurisdiction to the courts of the MS to which a child had been unlawfully removed. 2) A judgment of the court with jurisdiction ordering the return of a child fell within the scope of Art 11(8), even if not preceded by a final judgment of that court relating to rights of custody. 3) A judgment delivered subsequently by a court in the State of enforcement, awarding provisional custody rights, and regarded as enforceable under the law of that State, could not preclude enforcement of a certified judgment delivered previously by the court with jurisdiction in the MS of origin, ordering the return of the child (Art 47(2)) 4) Enforcement of a certified judgment could not be refused in the State of enforcement because of welfare concerns. Any application to suspend enforcement of its judgment must be pleaded in the State of origin.