VIEW OF ADVOCATE GENERAL

Sharpston

of 1 July 2008 (1)

Case C‑195/08 PPU

Rinau

(Reference for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas (Lithuania))

(Urgent preliminary ruling procedure – ‘Brussels II bis’ Regulation – Application for non-recognition of a judgment entailing the return of a child – Conditions governing examination of the application)

1.        A child born in Germany in 2005 to a German father and a Lithuanian mother, who were married at the time but are now divorced, is at present in Lithuania with the mother, against the wishes of the father. In the context of the divorce proceedings, the German courts awarded custody of the child to the father, and ordered that she be returned to him. The Lietuvos Aukščiausiasis Teismas (Supreme Court of Lithuania) seeks a preliminary ruling on six questions concerning the conditions governing examination of the mother’s application for a declaration of non-recognition of those aspects of the divorce judgment.

2.        Such a situation is governed in Community law, by the ‘Brussels II bis’ Regulation, (2) read together with the 1980 Hague Convention. (3) I shall not set out their relevant provisions here in full, but I shall refer to them in my analysis.

3.        The main elements of the factual and procedural background may be summarised in tabular form. In the table below:

–        information in bold type concerns, on the one hand, the divorce proceedings in Germany, culminating in a judgment granting divorce, awarding custody to the father and ordering that the child be returned to him and, on the other hand, the proceedings commenced by the mother in Lithuania for a declaration that the judgment should not be recognised as regards the two latter aspects, and thus to the present request for a preliminary ruling by the Court;

–        information in italic type concerns a separate procedure initiated by the father in Lithuania seeking a court order there for the child’s return to Germany; the order made has been subject to various challenges and suspensions, so that the procedure is still continuing in Lithuania in parallel to the proceedings which have given rise to the request for a preliminary ruling.

Date	Germany		Lithuania
11/1/2005	Birth of the child
3/2005	The parents separate; custody remains joint; the child lives with the mother but maintains frequent contact with the father Divorce proceedings commence
21/7/2006	With the father’s consent, the mother takes the child to Lithuania for two weeks’ holiday
6/8/2006			The mother remains in Lithuania with the child
14/8/2006	The Amstgericht (Local Court) in Oranienburg annuls joint custody and awards provisional custody to the father
?/2006	The mother appeals against the Oranienburg court’s decision
11/10/2006	TheBrandenburgisches Oberlandesgericht (Brandenburg Regional Appeal Court) dismisses the mother’s appeal and confirms the provisional award of custody to the father
30/10/2006			The father asks the Klaipėda court  (4)to order the child’s return to Germany
22/12/2006			The Klaipėda court dismisses the father’s application
15/3/2007			The Lietuvos apeliacinio teismas (Lithuanian Court of Appeal) quashes the Klaipėda Court’s decision and orders the child’s return by 15/4/2007
4/6/2007			The mother requests a reopening of the proceedings leading to the order of 15/3/2007, alleging new circumstances and the child’s interests, on the basis of Article 13 of the Convention
13/6/2007			The State Attorney of the Republic of Lithuania requests the reopening of the same proceedings, alleging misapplication of the Convention by the Court of Appeal
19/6/2007			The Klaipėda court dismisses the two requests for a reopening and recognises the jurisdiction of the Oranienburg court
20/6/2007	The Oranienburg court grants divorce, awards custody to the father, orders the child’s return and issues a certificate under Article 42 of the Regulation
6/8/2007	The mother appeals against the award of custody and the return order
27/8/2007			On appeal by the mother and the State Attorney, the Court of Appeal confirms the dismissal of the applications for a reopening
?/2007			The mother applies for a decision that the Oranienburgcourt’s judgment of 20/6/2007 should not be recognised to the extent that it grants custody to the father and orders the child’s return
14/9/2007			The Court of Appeal dismisses the mother’s request for a declaration of non-recognition
11/10/2007			The mother appeals on a point of law against the Court of Appeal’s decision of 14/9/2007
7/1/2008			On appeal by the mother and the State Attorney, the Supreme Court quashes the decisions of 19/6 and 27/8/2007on the ground of non-compliance with the Code of Civil Procedure and refers the applications for a reopening back to the Klaipėda Court
20/2/2008	The Brandenburg Appeal Court dismisses the mother’s appeal against the decision of 20/6/2007
15/3/2008			The Supreme Court suspends enforcement of the Court of Appeal’s order of 15/3/2007
21/3/2008			The Klaipėda court again dismisses the applications for a reopening by the mother and the State Attorney
30/4/2008			The Court of Appeal confirms the rejection of the applications for a reopening The Supreme Court decides to seek a preliminary ruling on six questions in the context of the appeal on a point of law against the decision of 14/9/2007
14/5/2008			The preliminary questions are received at the Court of Justice
21/5/2008			The Supreme Court requests urgent treatment of the request for a preliminary ruling
26/5/2008			The Supreme Court rules that the mother’s appeal on a point of law against the decisions of 21/3 and 30/4/2008 is admissible, and suspends enforcement of the Court of Appeal’s order of 15/3/2007

      

4.        In the procedure which has given rise to the reference for a preliminary ruling, the Supreme Court of Lithuania must decide whether to quash the decision of the Lithuanian Court of Appeal’s decision of 14 September 2007 dismissing the mother’s application for non-recognition of the divorce judgment to the extent that it grants custody to the father and orders the child’s return to Germany.

5.        With regard to the child’s return, the Court of Appeal had noted that, under Article 11(8) of the Regulation, notwithstanding a judgment (5) of non-return pursuant to Article 13 of the 1980 Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction is to be enforceable in accordance with Section 4 of Chapter III of the Regulation. By virtue of Article 42(1), which forms part of that section, any such subsequent judgment is to be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition, provided that it is enforceable and has been certified in the Member State of origin. The Oranienburg court had issued the relevant certificate, indicating that all the conditions required for such issue were met. Since its judgment should have been immediately enforced without any special exequatur procedure, the application for a declaration of non-recognition was inadmissible.

6.        The Court of Appeal also recalled that, on 15 March 2007, it had itself ordered the child’s return on the basis of the Regulation and the Convention. The Orianenburg Court’s judgment of 20 June 2007 should therefore have been enforced directly in accordance with Section 4 of Chapter III of the Regulation, without any special exequatur procedure. The Court of Appeal rejected the argument that Article 11(8) of the Regulation meant that, failing proceedings to obtain recognition of the judgment, the child’s return should be ordered only when a judgment of non-return has been issued under Article 13 of the Convention. In the Court of Appeal’s view, the wording ‘notwithstanding a judgment of non-return’ shows that, even if such a judgment has been delivered, the child’s return can be ordered under the Regulation without applying the procedure for recognition of the judgment. When an order for the child’s return has been made under the Convention, it must be enforced concurrently with the comparable judgment issued under the Regulation, without any prior recognition procedure (Article 42(1) of the Regulation).

7.        With regard to custody, the Court of Appeal considered that the application for non-recognition could not be examined in the absence of a request for recognition of that part of the judgment.

8.        A number of issues of interpretation arose in the course of the Supreme Court’s examination of the further appeal on a point of law.

9.        First, Article 21(3) of the Regulation provides that any interested party may apply for a decision that the judgment should or should not be recognised. In accordance with Article 31(1), the person against whom enforcement is sought is not entitled to make any submissions on that application. In the present case, the person against whom enforcement is sought has applied for a decision that the judgment should not be recognised, while the other party has not made any application for a decision that it should be recognised. In those circumstances, can the person against whom enforcement is sought apply for a decision that the judgment should not be recognised and, if so, how is Article 31(1) to be interpreted?

10.      Next, according to Article 40(2) of the Regulation, the provisions of Section 4 are not to prevent a holder of parental responsibility from seeking recognition and enforcement of a judgment. In the present case, the mother has applied for a declaration of non-recognition. Is such an application permissible and, if so, must the court seised examine the grounds of non-recognition on the basis of Article 23 of the Regulation? What is the meaning of the condition in Article 21(3), that the availability of an application for a decision that the judgment should or should not be recognised is without prejudice to Section 4, which regulates the enforcement of certain judgments which require the return of the child?

11.      While the Regulation does not directly determine which court has jurisdiction to examine the question of the child’s return, Article 11(6) provides that if a court has issued an order on non-return pursuant to Article 13 of the Convention, it must transmit a copy of that order to the court with jurisdiction in the Member State where the child was habitually resident immediately before the wrongful retention. Consequently, in the present case the German court would be entitled to rule on the question of the child’s return only if the Lithuanian court decided to refuse return. If the German court then ordered the child’s return and issued a certificate, that decision would be directly recognised and enforceable in Lithuania without any special exequatur procedure (Articles 11(8) and 42 of the Regulation). But, as the Lithuanian Court of Appeal had already ordered the child’s return, did the German court have jurisdiction to examine the question under Article 11 and issue a certificate under Article 42? Was it compatible with the aims and procedures of the Regulation to order the child’s return and issue the certificate?

12.      Finally, according to Article 24 of the Regulation, a Lithuanian court cannot review the jurisdiction of a German court or examine whether such jurisdiction complies with public policy. However, a court seised of an application for non-recognition of a judgment must, having examined the grounds for non-recognition set out in Article 23 of the Regulation, take a decision. If it does not find grounds for non-recognition, it must then recognise the judgment. In that event, two decisions ordering the child’s return will be enforceable in Lithuania: that of the German court and that of the Lithuanian Court of Appeal. In those circumstances, must the court seised of the application for non-recognition recognise the judgment ordering the child’s return even if the court of the Member State of origin failed to observe a procedure laid down in the Regulation?

13.      The Supreme Court of Lithuania therefore asks the following questions:

‘(1)      Can an interested party within the meaning of Article 21 of Regulation No 2201/2003 apply for non-recognition of a judicial decision if no application has been submitted for recognition of that decision?

(2)      If the answer to Question 1 is in the affirmative: how is a national court, when examining an application for non-recognition of a decision, brought by a person against whom that decision is to be enforced, to apply Article 31(1) of Regulation No 2201/2003, which states: Neither the person against whom enforcement is sought, nor the child shall, at this stage of the proceedings, be entitled to make any submissions on the application”?

(3)      Is the national court which has received an application by the holder of parental responsibility for non-recognition of that part of the decision of the court of the Member State of origin requiring the child staying with that person to be returned to the State of origin, and in respect of which the certificate provided for in Article 42 of Regulation No 2201/2003 has been issued, required to examine that application on the basis of the provisions of Sections 1 and 2 of Chapter III of Regulation No 2201/2003, as provided for in Article 40(2) of that regulation?

(4)      What meaning is to be attached to the condition laid down in Article 21(3) of Regulation No 2201/2003 (“without prejudice to Section 4 of this Chapter”)?

(5)      Do the adoption of the decision to return the child and the issue of the certificate under Article 42 of Regulation No 2201/2003 in the court of the Member State of origin, after a court of the Member State in which the child is wrongfully retained has taken a decision that the child be returned to his or her State of origin, comply with the objectives of and procedures under Regulation No 2201/2003?

(6)      Does the prohibition in Article 24 of Regulation No 2201/2003 of review of the jurisdiction of the court of the Member State of origin mean that, if it is unable to review the jurisdiction of the court of the Member State of origin and cannot identify any other grounds for non-recognition of decisions as set out in Article 23 of Regulation No 2201/2003, a national court which has received an application for recognition or non-recognition of a decision of a foreign court is obliged to recognise the decision of the court of the Member State of origin ordering the child’s return if the court of the Member State of origin failed to observe the procedures laid down in the regulation when deciding on the issue of the child’s return?’

14.      The Court having decided to deal with the reference under the urgent procedure governed by Article 104b of its Rules of Procedure, written observations were submitted by the mother, the father, the Lithuanian Government and the Commission, the only parties authorised to make submissions at that stage. The same parties, together with the German, French, Latvian, Netherlands and United Kingdom Governments, took part in the hearing on 26 and 27 June 2008.

 Analysis

 Aims and principles of the Convention and the Regulation

15.      The Pérez-Vera Report on the Convention summarises its objectives, which appear in Article 1, as follows: ‘since one factor characteristic of the situations under consideration consists in the fact that the abductor claims that his action has been rendered lawful by the competent authorities of the State of refuge, one effective way of deterring him would be to deprive his actions of any practical or juridical consequences. The Convention, in order to bring this about, places at the head of its objectives the restoration of the status quo, by means of “the prompt return of children wrongfully removed to or retained in any Contracting State”.’ (6)

16.      It is clear from its preamble, in particular recitals 17, 21, 23 and 24, and from the provisions of Article 11, that the Regulation shares the same aim of ensuring, in principle and other than in special circumstances, the child’s swift and automatic return to the Member State from which he or she has been removed and where he or she was habitually resident before the removal. (7)

17.      In addition, it is clear from recitals 12 and 17 in particular, and from the provisions of Articles 8, 10 and 11, that the Regulation also aims to give the courts of the same Member State substantive jurisdiction to decide questions of custody and access, and to maintain that jurisdiction, while confirming the role of the courts of the Member State to which the child has been removed with regard to his or her return.

18.      A principle which underpins the Regulation as a whole is that of cooperation and mutual confidence between the courts and authorities of the Member States, which implies that decisions of the courts of the Member State of the child’s habitual residence (8) should in principle be recognised and enforced automatically (see in particular recitals 18, 21, 23 and 25, and Articles 21, 24, 26 and 42).

19.      The fundamental significance of this principle was brought into focus at the hearing when counsel for the mother suggested that the Lithuanian courts might consider that the objectivity of the German courts was not guaranteed in a dispute between a German father and a Lithuanian mother. It is clear that to allow recognition to be refused on the basis of such doubts (whether they are or are not in fact felt by the Lithuanian courts) would negate the whole system which the Regulation seeks to establish. It would also be wholly incompatible with the aim of establishing an area of freedom, security and justice to which all the Member States have committed themselves in the Treaties.

20.      Finally, the most important principle governing both the Convention and the Regulation is beyond any doubt that of protecting the superior interests of the child (see in particular the preamble to the Convention and recitals 12 and 13 in the preamble to the Regulation, together with Articles 12, 15 and 23 thereof; see also Article 3(1) of the United Nations Convention on the Rights of the Child (9) and Article 24(2) of the Charter of Fundamental Rights of the European Union (10)).

21.      That principle too was invoked, emphatically, at the hearing, and I can only agree that the superior interests of the child must indeed be paramount in all circumstances.

22.      However, I should like to qualify that statement in the context of the child’s return to the Member State of habitual residence. It is clear that the Convention and the Regulation are based on the principle that, in the event of a child’s wrongful removal or retention, his or her superior interests do indeed always require that return, except only in certain clearly-defined situations set out in Articles 13 and 20 of the Convention (read, in so far as Article 13(b) is concerned, in conjunction with Article 11(4) of the Regulation). That, it seems to me, is perfectly coherent, and even necessary. A child can have no interest in being dragged from one Member State to another by a parent in quest of the court which he or she supposes will be the most sympathetic to his or her cause. I would add that a return to the Member State of habitual residence does not necessarily imply the child’s return to the home of the parent left behind, or separation from the abducting parent. Those are separate questions, to be decided by the competent court, which must take account of all the emotional, psychological and material aspects of the situation and which must, in deciding, accord paramount importance to the child’s superior interests.

23.      It is above all in the light of those aims and principles that the provisions of the Regulation must, in my view, be interpreted.

24.      However, one cannot but observe that, in the present case, the fundamental aim of depriving the actions of the abducting parent of any practical or juridical consequences by ensuring the child’s prompt return is far from having been achieved.

25.      Although, from the information available to the Court, it is not possible to identify precisely and with certainty all the factors which have contributed to that situation, it would seem in any event that the cooperation between courts and authorities which the Convention and the Regulation seek to ensure did not function in an ideal manner. With hindsight, moreover, it seems clear that the result sought by the Convention and the Regulation would not have been obstructed in the same way if the father had applied directly to the Oranienburg court as soon as the Klaipėda court had issued its non-return order. (11)

26.      However the situation came about, I think it will be helpful, before endeavouring to answer the questions raised by the Supreme Court of Lithuania, to examine the course taken by the procedure in the light of the relevant provisions of the Convention and the Regulation.

 The course taken by the procedure, examined in the light of the relevant provisions

27.      First of all, it is neither denied nor deniable that the German courts had jurisdiction to hear the divorce proceedings under Article 3(1)(a) of the Regulation, as all the residence requirements listed there were fulfilled at the time when the proceedings were initiated.

28.      Next, it appears to be common ground that the child was indeed wrongfully retained for the purposes of the Convention (Article 3) and the Regulation (Article 2(11)). At the time when the mother announced her intention not to return to Germany with the child, custody rights were actually exercised by both parents jointly, by virtue of German law, and the father had consented only to a two-week trip to Lithuania.

29.      Thus, as the conditions for a displacement of jurisdiction set out in Article 10 of the Regulation were not satisfied, the jurisdiction conferred by Article 8 in all matters of parental responsibility remained with the courts of the Member State of the child’s habitual residence immediately before the wrongful retention, namely Germany. With inescapable logic – confirmed, if need be, by Article 12(1) of the Regulation – the specific court concerned was that before which the divorce proceedings were pending, namely the Oranienburg court.

30.      The child should have been brought back to Germany on 6 August 2006. When the mother announced her intention of remaining in Lithuania with the child, the father first applied to the court which had jurisdiction in matters of parental responsibility (the Oranienburg court) which, on 14 August 2006, provisionally granted him sole custody. The mother appealed, but that award of custody was upheld by the Brandenburg appeal court on 11 October following.

31.      It may be noted here that, by virtue of Article 21(1) of the Regulation, that provisional award of custody was to be recognised in Lithuania ‘without any special procedure being required’ – but that, under Article 21(3), it would have been open to the father to apply for a decision that it should be recognised, or to the mother to apply for a decision that it should not be recognised, both ‘in accordance with the procedures provided for in Section 2’. Neither, however, took that course.

32.      Then, on 30 October 2006, on the basis, essentially, of Article 12 of the Convention, the father requested the competent Lithuanian court (namely the Klaipėda court) to order the child’s return. I would point out here that, even though he did not do so until sole custody had been awarded to him and confirmed on appeal, there was nothing to prevent him from making that application as soon as the child had failed to be returned.

33.      Once seised, the Lithuanian court was in principle required to order the child’s return, as the one-year period provided for in Article 12 of the Convention had not yet expired. It should also have issued its judgment no later than six weeks after the application was lodged (Article 11(3) of the Regulation). The only grounds on which it could have refused to order the child’s return were those set out in Article 13 of the Convention, read subject to Article 11(4) of the Regulation, and Article 20 of the Convention.

34.      In the event, the Lithuanian court gave its decision – refusing the child’s return – on 22 December 2006, slightly over seven weeks after the application was lodged. (12)

35.      At that stage, pursuant to Article 11(6) of the Regulation, the Lithuanian court should have immediately transmitted a copy of its decision and other relevant documents to the competent court or central authority in Germany, to ensure that the German court received them within one month at the latest. From information given at the hearing, it appears that in fact it was the father’s lawyer who first notified the decision to the German central authority, and that a translation was later sent by the Lithuanian central authority.

36.      The Oranienburg court could then, on application by the father, have ordered the child’s return by virtue of Article 11(8) of the Regulation. That would have been the last word. If, after examining the question of custody in accordance with Article 11(7), it had then certified its judgment in accordance with Article 42 of the Regulation, that decision would have been enforceable in Lithuania as provided for in Articles 42 to 45.

37.      However, instead of using that possibility, the father appealed against the non-return order to the Lithuanian Court of Appeal, which, on 15 March 2007, quashed the decision and ordered the child’s return within one month. (13)

38.      That order, it would seem, should have been enforced within the period laid down, as it appears from the Supreme Court’s judgment of 7 January 2008 that Article 2(6) of the Lithuanian law implementing the Regulation expressly precludes any further appeal from the Court of Appeal’s decision. Immediate enforcement would, moreover, have been consistent with the fundamental aims of the Convention and the Regulation.

39.      However, as a result of the mother’s application for the proceedings to be reopened and the procedural vagaries that have followed upon it, the decision was not enforced, nor has it been enforced to this day. On the contrary, enforcement of the Court of Appeal’s decision has been suspended on several occasions, even by the Supreme Court itself – despite that fact that the same Supreme Court (14) held, in its judgment allowing the reopening, that such suspension was not possible.

40.      Even if enforcement of a judgment of a court of a Member State within its own territory is a matter for domestic law, it can only be concluded, at this point, that the outcome of these successive suspensions – the fact that, nearly two years after she was first supposed to return and more than 15 months after the decision ordering her return was issued, the child has still not been brought back to Germany – is totally incompatible with the fundamental aims of the Convention and the Regulation.

41.      I come now to the Oranienburg court’s judgment granting divorce, awarding sole custody definitively to the father and ordering (yet again) the child’s return (delivered on 20 June 2007 and confirmed on 17 February 2008 by the Brandenburg appeal court). That judgment was certified in accordance with Article 42 of the Regulation, which normally means that it must be ‘recognised and enforceable’ in Lithuania ‘without the need for a declaration of enforceability and without any possibility of opposing its recognition’.

42.      I note that the certificate accompanying that decision uses the standard form provided for and contains all the required information and statements, and that the judgment itself indicates, in line with Article 42(2) of the Regulation, that (a) it was not considered appropriate to hear the child, having regard to her age, (b) the parties were given an opportunity to be heard (the mother being represented but not present (15)), and (c) the reasons for not ordering return given by the Klaipėda court in its decision (of 22 December 2006, now quashed, subject to the proceedings being reopened) were examined but not accepted. Thus, even if the transmission procedure provided for in Article 11(6) of the Regulation was not formally observed in every particular, the aim sought was well and truly achieved, and it is quite clear, from both the judgment of the Oranienburg court of 20 June 2007 and that of the Brandenburg appeal court of 20 February 2008 dismissing the mother’s appeal, that both courts ruled in full knowledge of the background.

43.      The status of that decision and of its accompanying certificate, in the light of the provisions of the Regulation, raises doubts for the referring court, expressed in its fifth question. That question, I consider, is best addressed first, as it appears to lie at the core of the matter, and the answer to it may guide the approach to several other questions.

 The fifth question

44.      The Supreme Court wishes to know essentially whether, in the procedural circumstances of the case, the Regulation allowed the German court to order the child’s return and issue the certificate under Article 42.

45.      A distinction should first be drawn, in my view, between the order for return and certification of the order.

 Order for return

46.      With regard to the competence of the courts of the Member State of habitual residence to order the child’s return, a further distinction should be drawn between two possible bases of jurisdiction: Article 8 of the Regulation (read in conjunction with Article 10 and, where appropriate, Article 12(1)) and Article 11(8) of the Regulation (read in conjunction with the provisions of the Convention).

47.      It transpired at the hearing that some very divergent – even diametrically opposing – views as to the meaning of those provisions are variously held by different Member States and by the Commission. On the one hand, they are interpreted to mean that, initially, only the courts of the Member State where the child is actually present have jurisdiction, in the framework of the Convention and Article 11 of the Regulation, to order his or her return, and that such jurisdiction cannot be exercised by the courts of the Member State of habitual residence unless and until there is a final, enforceable non-return order, having the force of res judicata, issued by a court of the Member State where the child is actually present. On the other hand, there is the view that the courts of the Member State of habitual residence also, at all times, enjoy jurisdiction to order the child’s return, either by virtue of Article 8 (read with Article 10) of the Regulation or in the context of the Convention and Article 8 of the Regulation. (16)

48.      In view of those diverging interpretations, I think it is essential for the Court to give a very clear ruling on this aspect of the Regulation.

49.      For my part, I would immediately dismiss any assumption that the courts of the Member State where the child is actually present have exclusive jurisdiction up to the time they issue a non-return order.

50.      It is true that Article 12 of the Convention envisages those courts being seised of a request for an order to return the child, and it does indeed appear logical to apply to them in the first place, since their decision will never require exequatur proceedings in order to obtain enforcement. Likewise, the drafting of Article 11 of the Regulation gives the impression that a first decision is envisaged in the Member State where the child is actually present.

51.      However, I would recall that the Convention does not lay down any rules of jurisdiction, and I note that nothing in the Regulation explicitly limits jurisdiction to order the child’s return to the courts of the Member State where he or she is actually present. They unquestionably have that jurisdiction, but there is nothing to say that it must be exclusive.

52.      Moreover, general jurisdiction in matters of parental responsibility necessarily comprises jurisdiction to order the return of an abducted child.

53.      According to Article 2(7) of the Regulation, parental responsibility includes, in particular, rights of custody and, according to Article 2(9), the term ‘rights of custody’ includes in particular the right to determine the child’s place of residence. Chapter II, Section 2, of the Regulation is entitled ‘Parental responsibility’ and includes, in particular, Article 11, entitled ‘Return of the child’. Moreover, since Article 10(b)(iv) speaks of ‘a judgment on custody that does not entail the return of the child … issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention’, (17) it must be concluded that the same courts may also issue a decision on custody which does entail return. Finally, if a court has jurisdiction, under Articles 8 or 12 of the Regulation, in all matters relating to parental responsibility and, thus, to custody (connected, where relevant, with an application for divorce), it is simply not conceivable that such jurisdiction should not include the power to ensure the child’s actual presence with the person to whom custody has been granted. And that power must in turn include the power to take any interim measures which appear necessary in the course of the proceedings. To preclude the Court with jurisdiction in matters of parental responsibility from ordering the child’s return would be tantamount to depriving it of any real jurisdiction to make any provisional or final ruling on custody.

54.      I thus reach the conclusion that, to start with, in a case of child abduction, it is possible to apply for an order for the child’s return to the competent court of the Member State of habitual residence, to the competent court of the Member State where the child is actually present – or even to the competent court called upon to decide on an application for divorce, legal separation or marriage annulment, if the latter is in a third Member State. (18)

55.      The effects of the order issued may, however, differ depending on the court chosen.

56.      If the order entails the child’s return, it will be enforceable, ex hypothesi, in the Member State where the child is actually present if it is issued by a court of that State. If it is issued by a court of another Member State, it will be recognised in the Member State where the child is actually present, pursuant to Article 21(1) of the Regulation, without any special procedure being required (subject to a possible application under Article 21(3) that it should not be recognised on one of the grounds exhaustively listed in Article 23), but its enforcement will require a declaration of enforceability pursuant to an application made in accordance with Chapter III, Section 2, of the Regulation (Articles 28 to 36). That is so because the only decisions which are enforceable in other Member States without such a declaration are those issued pursuant to Article 11(8) (that is to say, after an initial decision of non-return issued pursuant to Article 13 of the Convention) and certified in accordance with Article 42(2) of the Regulation.

57.      If the order does not entail the child’s return, and is issued by a court of a Member State other than that in which the child is actually present, there will obviously be no attempt to have it recognised or enforced in any State, but appeal proceedings under domestic law will of course remain available.

58.      If, on the other hand, a non-return order is issued by a competent court in the Member State where the child is actually present, then the machinery of Article 11(6) to (8) will be set in motion – the order must be transmitted to the competent court of the Member State of habitual residence, which will invite the parties to make submissions and examine the question of custody and which may, finally, issue a decision ordering the child’s return which will be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if it is certified in accordance with Article 42(2).

59.      Thus, the competent court of the Member State of habitual residence may, under the jurisdiction which it already enjoys from Articles 8, 10 and, where applicable, 12, order the child’s return in the context of Article 11(8) if a non-return decision has been issued pursuant to Article 13 of the Convention. In that event, its order will not require a declaration of enforceability in accordance with the procedure in Chapter III, Section 2.

60.      But the referring court’s question supposes not a pre-existing non-return decision pursuant to Article 13 of the Convention but a pre-existing order for the child’s return issued under Article 12 of the Convention, by a competent court of the Member State where the child is actually present. In such a situation, can the competent court of the Member State of habitual residence also order the child’s return?

61.      Quite obviously, such a question can arise only in extraordinary circumstances such as those of the present case. It is self-evident that in any normally conceivable situation, the child will be returned to the Member State of habitual residence following the first order for his or her return, particularly since the very strict time-limit for taking the decision is not conducive to appeal proceedings. (19) It is therefore quite understandable, as the Netherlands Government pointed out at the hearing, that the legislature did not explicitly envisage the rather implausible situation now facing us.

62.      I shall endeavour none the less to find a solution to that situation too in the provisions of the Regulation, interpreted in accordance with its fundamental aims.

63.      First, we may look at Article 19 of the Regulation, which concerns lis pendens. According to paragraphs 2 and 3 of that article, where proceedings relating to parental responsibility for the same child and involving the same cause of action are brought before courts of different Member States, the court second seised must of its own motion stay its proceedings until the jurisdiction of the court first seised is established. Where that jurisdiction is established, the court second seised must decline jurisdiction in favour of that court. I conclude that, in the normal event, as long as proceedings for a return order are pending in the Member State where the child is actually present, the court of the Member State of habitual residence must not examine the same question. In so far as the six-week time-limit imposed by Article 11(3) applies, that result in no way delays the return procedure, whereas the simultaneous conduct of two sets of proceedings concerning the same child could give rise to complications.

64.      However, once the court of the Member State where the child is actually present has issued its decision, lis pendens no longer applies and there is thus no longer any barrier to the exercise of jurisdiction by the court of the Member State of habitual residence. Article 11(8) of the Regulation specifically confirms jurisdiction in the event of an initial non-return decision, and there is no reason to rule out that jurisdiction (as conferred by Articles 8 and 10) if the initial decision orders the child’s return. The only difference is that, in that event, the specific provisions of Article 11(8) will not apply and, in practice, a second return order will normally be redundant.

65.      I would add that, without necessarily following the Commission in its suggestion that, if the court of the Member State where the child is actually present has not taken a decision within a certain period, there is a de facto non-return order capable of triggering the application of Article 11(8), I consider that the lis pendens rule in Article 19 must be read subject to the six-week time-limit imposed by Article 11(3) and that any failure to comply with that time-limit may also set aside the barrier to the exercise of the jurisdiction of the court of the Member State of habitual residence under Articles 8 and 10.

66.      Consequently, to sum up on my analysis of this part of the fifth question, the adoption of a decision ordering the return of the child by the court of the Member State of habitual residence after the court of the Member State where the child is actually present has ordered his or her return is in no way incompatible with the aims or procedural rules of the Regulation.

 Certification of the decision

67.      The referring court asks also whether, once that decision has been adopted, the issue of a certificate under Article 42 of the Regulation complies with those aims and procedures.

68.      The reply to this part of the question is simpler, at least in the abstract. The certificate in question can never be issued unless the decision was adopted in the circumstances set out in Article 11(8) of the Regulation (Article 42 refers to Article 40(1)(b), which refers in turn to Article 11(8)). The adoption of a return order in such circumstances presupposes that a non-return decision has been issued previously pursuant to Article 13 of the Convention. Admittedly, taken in isolation, the wording ‘notwithstanding a judgment of non-return pursuant to Article 13 of the 1980 Hague Convention’ (emphasis added) could be taken to mean ‘whether such a judgment has been issued or not’. (20) However, on a systematic reading, Article 11(6) to (8) rules out such an interpretation. Moreover, a certificate cannot be issued under Article 42 unless, in particular, the court has taken into account in issuing its judgment the reasons for and evidence underlying the order issued pursuant to Article 13 of the Convention (Article 42(2)(c)).

69.      I conclude that, in principle, the issue of a certificate under Article 42 of the Regulation by the court of the Member State of habitual residence, in respect of a return order which it has made after the court of the Member State where the child is actually present has ordered his or her return does not comply with the procedural rules of the Regulation.

 Competence to deliver a certificate under Article 42 in the present case

70.      The formulation of the national court’s fifth question omits however any mention of a factor in the present case which cannot be ignored if we are to give that court a helpful answer.

71.      It is true that the Oranienburg court’s decision of 20 June 2007, which is the decision under challenge in the proceedings with which we are concerned, was preceded by that of the Lithuanian Court of Appeal of 15 March 2007 also ordering the child’s return, but it was preceded, too, by that of the Klaipėda court of 22 December 2006, which was well and truly a ‘judgment of non-return pursuant to Article 13 of the 1980 Hague Convention’ within the meaning of Article 11(8) of the Regulation.

72.      Can that circumstance affect the compatibility with the Regulation of the certificate which the Oranienburg court issued in respect of its order? In other words, was the Oranienburg court entitled to consider that the requirements for the application of Article 11(6) to (8) were satisfied?

73.      It transpired at the hearing that most of the Member States submitting observations thought that the answer should be ‘no’ – only a final, enforceable judgment having the force of res judicata could trigger the application of those provisions. In the present case, the Klaipėda court’s decision of 22 December 2006 had been not only appealed against but quashed before the Oranienburg court took its decision of 20 June 2007. In addition, we were told, the decision of 22 December 2006 had never been enforceable at any time.

74.      I do not agree with that analysis.

75.      Article 11 uses the words ‘the court shall …. issue its judgment’ (paragraph 3, second sentence), ‘[i]f a court has issued an order on non-return’ (paragraph 6) and ‘[n]otwithstanding a judgment of non-return pursuant to Article 13 of the 1980 Hague Convention’ (paragraph 8). (21) In other provisions, when the Regulation wishes to specify that a decision is enforceable, it does so explicitly (see, in particular, Articles 28, 36 and 44). But nothing in the wording of Article 11 indicates that the non-return decision must be enforceable, or even still in force, at the moment when the court of the Member State of habitual residence gives its judgment in the context of Article 11(8). (22)

76.      On the contrary, the text even seems indifferent to the subsequent fate of that decision. It does not envisage, explicitly or by implication, any appeal procedure in the Member State where the child is actually present. Paragraph 6 requires the court which issued the decision to transmit it immediately, together with all other relevant documents, to the authorities of the Member State of habitual residence, to be received by the competent court of that State within a mandatory time-limit of one month from the date of the non-return order. That notification triggers, under paragraph 7, a new time-limit of three months for the parties to make their submissions so that the court of the Member State of habitual residence can examine the question of custody, as a result of which it may order the child’s return as envisaged in paragraph 8, which will be fully enforceable as provided for in Article 42 if it is certified.

77.      That chain of obligations and procedures forms a whole, and is set in motion automatically as soon as the non-return order is issued. The only factor envisaged as interrupting it is the non-receipt of submissions from the parties by the court of the Member State of habitual residence (paragraph 7, second indent) – which would amount, in effect, to a discontinuance of the proceedings by the parent left behind.

78.      If a non-return order issued by the court of the Member State where the child is actually present is subsequently overturned by a higher court, that does not in any way change the essential factors, namely that: (a) a non-return order was made; (b) the child has still not been returned; (c) time is passing; and (d) the court of the Member State of habitual residence still has sole jurisdiction to decide on custody, which necessarily implies the power to ensure, by interim order where appropriate, the child’s presence with the person to whom it awards custody.

79.      It is entirely coherent with the aims and scheme of the Regulation with regard to child abduction to interpret Article 11(6) to (8) as applying notwithstanding any appeal which may be brought against the initial non-return order in the Member State in which it was made. The point of those provisions is to transfer final responsibility to decide on the child’s return to the court having jurisdiction to make a provisional or final award of custody (which necessarily implies the power to ensure the child’s presence with the person to whom custody is awarded), and to do so with all despatch, so that the final decision on return can be taken as swiftly as possible.

80.      Nor does that interpretation encroach upon the parties’ procedural rights or interests. The abducting parent will have no interest in challenging a non-return order in the Member State where the child is actually present, and the parent left behind will normally be best placed to present his or her arguments before the courts of the Member State of habitual residence.

81.      The opposite interpretation, by contrast, would necessarily introduce further delay in the process of ensuring the child’s prompt return, which is one of the primary requirements of both the Convention and the Regulation. In extreme cases, as we see here, it could allow procedural procrastination with no clear end in sight, irremediably undermining the proper application of the two instruments.

82.      In my view, the wording does not require us to read the Regulation in that way, and such a reading would run counter to one of its principal aims.

83.      Consequently, in the present case, the fact that the Klaipėda court’s decision of 22 December 2006 was quashed by the Lithuanian Court of Appeal on 15 March 2007 was no obstacle to the Oranienburg court’s decision of 20 June 2007 ordering the child’s return in accordance with Article 11(8) of the Regulation.

84.      As a result, that court was competent to issue a certificate under Article 42, which means that its duly certified decision was enforceable in Lithuania ‘without the need for a declaration of enforceability and without any possibility of opposing its recognition’.

85.      In response to a concern expressed by the mother and echoed by the referring court, concerning the relationship between the decision of the Lithuanian Court of Appeal of 15 March 2007 and that of the Oranienburg court of 20 June 2007, both entailing the child’s return, I would say first of all that two decisions with the same effect should not normally interfere with each other. If, however, such a situation were to pose a problem under the procedural law of the Member State where the child is actually present, it would be necessary to amend the relevant provisions or to interpret and apply them in conformity with the purpose of the Regulation. And if the two decisions lay down different conditions for the return, that of the court of the Member State of habitual residence will prevail, as it is that court which has jurisdiction to settle all questions relating to parental responsibility. Moreover, neither the Convention nor the Regulation provides that the court of the Member State where the child is actually present should subject its order to conditions. Its role is confined to ensuring (in so far as the grounds for refusal in Articles 13 and 20 of the Convention have been ruled out) the child’s return to the Member State of habitual residence, the competent authorities and courts of which will take the necessary measures to ensure that the child’s well-being and interests are guaranteed.

 Possibility for the court of the Member State where the child is actually present to examine the validity of a certificate issued under Article 42

86.      There remains one final aspect of this question, which has been discussed in the written observations and at the hearing but which, if the Court agrees with my analysis, will have no repercussions in the present case: if the court of the Member State of habitual residence orders the child’s return and certifies its decision in accordance with Article 42(2) of the Regulation even though it lacked the competence to do so because the criterion of a pre-existing non-return order, issued by the court of the Member State where the child is actually present, was not met, may the latter court verify that competence and, if appropriate, refuse to recognise the validity of the certificate?

87.      In my view, the answer must be ‘no’.

88.      First of all, it is clear that the Regulation does not provide for any verification of that kind. On the contrary, the fact that, when a certificate in compliance with the requirements of Article 42(2) has been issued, the decision is to be ‘recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition’ explicitly excludes such an examination.

89.      That exclusion meets the aim of ensuring that the decision taken in the circumstances of Article 11(8) will be final (it should be borne in mind that, when that decision is issued, the six-week time-limit laid down for the normal case by Article 11(3) will necessarily have expired some time previously) and accords with the principle of mutual confidence and recognition as between the courts of different Member States.

90.      Nor does the result encroach upon the rights of the abducting parent.

91.      In the first place, Article 42 establishes a number of procedural preconditions before the court of the Member State of origin can issue such a certificate.

92.      Second, although Article 43 excludes any appeal against the issuing of the certificate as such, the abducting parent can always (in accordance with the procedural rules of the Member State of origin) appeal against the certified decision itself. If the appeal court upholds the claim – which might be on the ground, for example, that the elements referred to in Article 11(6) and (7) had not been taken into account – it will quash the decision and, concomitantly, the effects of the certificate.

93.      Moreover, the Regulation itself provides: ‘The certificate shall take effect only within the limits of the enforceability of the judgment’ (Article 44). And Article 47 specifies that ‘a judgment which has been certified according to … Article 42(1) cannot be enforced if it is irreconcilable with a subsequent enforceable judgment’. A decision on appeal overturning the first decision would meet that condition and thus preclude enforcement of the certified decision.

94.      The party seeking to challenge the certificate is therefore not denied a right to appeal; the appropriate procedure is to seek annulment of the decision certified.

95.      In my view, that possibility is quite sufficient to protect the abducting parent from any aberration on the part of a court of the Member State of habitual residence.

96.      I would add that even though, in the type of situation with which we are concerned, the Regulation asks the court of the Member State of enforcement to evince the mutual confidence on which the area of freedom, security and justice depends, it is not asked to show blind trust. On the contrary, the system set up requires it merely to recognise and respect the integrity, objectivity and independence of a court in another Member State, whose decision may be appealed against by the party against whom enforcement is sought, in the same way as it would for the courts of its own Member State. That, in the final analysis, is not a lot to ask.

 The sixth question

97.      Since my assessment of the fifth question has reached the conclusion that the decision of 20 June 2007 was taken in compliance with the procedure provided for in the Regulation, the sixth question referred, which is based on the assumption that the procedure was not complied with, loses its relevance for the present case.

98.      None the less, it may be noted that it is clear from Articles 21 and 31(2) of the Regulation, read together, that a judgment concerning parental responsibility must as a general rule be recognised and enforced in another Member State unless one of the grounds of non-recognition set out in Article 23 is present, and that Article 24 expressly prohibits review of the jurisdiction of the court of origin.

99.      It is clear from my analysis at points 86 to 96 above that verification that the procedure provided for in Article 11 of the Regulation has been respected is also precluded.

 The fourth question

100. The first four questions concern the mother’s application for a decision that the Oranienburg court’s judgment of 20 June 2007 should not be recognised in so far as it deals with the custody and return of the child. I find it best to start with the fourth of those questions.

101. The referring court asks the meaning of the term ‘without prejudice to Section 4’ in Article 21(3) of the Regulation.

102. The first subparagraph of Article 21(3) provides: ‘Without prejudice to Section 4 of this Chapter, any interested party may, in accordance with the procedures provided for in Section 2 of this Chapter, apply for a decision that the judgment be or not be recognised’.

103. It thus lays down a general rule (since Article 21 concerns all decisions in matrimonial matters and in matters of parental responsibility), allowing any interested party to request recognition or non-recognition of a judgment falling within the scope of the Regulation subject, where applicable, to the provisions of Chapter III, Section 4.

104. That section concerns certain judgments concerning rights of access and certain judgments which require the return of the child. In the latter regard, it applies to the return of a child entailed by a judgment given pursuant to Article 11(8) (Article 40(1)(b)). The present case involves just such a judgment.

105. Consequently, any interested party may apply for non-recognition of a decision taken in the circumstances set out in Article 11(8) and ordering a child’s return, unless that is incompatible with a provision of Chapter III, Section 4, which, as a lex specialis, will in that case prevail over the general rule.

106. In that section, Article 42(1) provides, in particular: ‘The return of a child referred to in Article 40(1)(b) entailed by an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State … without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph 2.’

107. Thus, in a case such as that in the main proceedings, in which such a certificate has been issued, the practical meaning of the term ‘without prejudice to Section 4’ in Article 21(3) of the Regulation is that it is not possible to oppose recognition of the certified decision or, a fortiori, to make a separate application for a declaration that it should not be recognised.

 The third question

108. My conclusion on the fourth question, which means that no application can be made for non-recognition of an order for a child’s return issued in the circumstances set out in Article 11(8) of the Regulation and certified in accordance with Article 42(2), deprives the third question of its relevance, since it is based on the assumption that such an application is possible.

109. In such a case, any review of the decision or of the certificate by the court of the Member State where the child is actually present, whether on that court’s own motion or on application by the person against whom enforcement is sought, is ruled out.

 The first and second questions

110. The same is true for the first and second questions, to the extent that they concern the application for non-recognition of the part of the judgment ordering the child’s return.

111. However, unlike the other questions, the scope of these first two questions is not expressly limited to the decision ordering the child’s return. In so far as the mother also seeks a declaration of non-recognition of the part of the judgment awarding custody to the father, these questions may remain relevant. Unlike the return order, this aspect is not governed by Chapter III, Section 4, of the Regulation, which precludes any opposition to recognition of a return order duly certified in accordance with Article 42(2).

112. The referring court asks whether an interested party within the meaning of Article 21 of the Regulation may request non-recognition of a judgment if no application has been submitted for it to be recognised and, if so, how a national court, examining an application for non-recognition brought by the person against whom enforcement is sought, is to apply Article 31(1), according to which that person may not make any submissions on the application at this stage of the proceedings.

113. Article 21 of the Regulation forms part of Chapter III, Section 1, entitled ‘Recognition’. Article 21(1) provides that judgments given in a Member State are to be ‘recognised in the other Member States without any special procedure being required’. However, according to Article 21(3) (without prejudice to Section 4 – which, as I have indicated, is not relevant for decisions awarding custody), ‘any interested party may, in accordance with the procedures provided for in Section 2 of this Chapter, apply for a decision that the judgment be or not be recognised’. Seven grounds of non-recognition for judgments relating to parental responsibility are listed in Article 23.

114. Section 2 of Chapter III is entitled ‘Application for a declaration of enforceability’. Article 28(1) provides that a ‘judgment on the exercise of parental responsibility in respect of a child given in a Member State which is enforceable in that Member State and has been served shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there’. Article 31(1) provides that the court applied to is to give its decision without delay and adds: ‘… the person against whom enforcement is sought [… shall not,] at this stage of the proceedings, be entitled to make any submissions on the application’. Article 31(2) specifies: ‘The application may be refused only for one of the reasons specified in Articles 22, 23 and 24’ – which are all grounds for non-recognition. Article 33 provides that either party may, within one month (paragraph 5), appeal against the decision on the application for a declaration of enforceability (paragraph 1) and that the appeal is to ‘be dealt with in accordance with the rules governing procedure in contradictory matters’ (meaning, it is clear from other language versions, adversarial proceedings, according to the audi alteram partem rule).

115. I can understand the source of the Supreme Court’s puzzlement. According to Article 21(3), it seems that the person against whom a decision might be enforced (who is quite clearly an ‘interested party’) may apply for a declaration that the decision should not be recognised, but Article 31(1) appears to exclude any possibility for that person (23) to make submissions on the application at that stage.

116. To resolve the dilemma, we must in my view take account of the distinction between ‘recognition’ and ‘declaration of enforceability’ of a judgment. In some contexts, those two concepts necessarily go hand in hand. That is so, for example, of a judgment entailing a child’s return, where it would make no sense to recognise the judgment without making it enforceable. By contrast, there is no need to confer ‘enforceability’ on a divorce judgment in order to allow one of the former spouses to remarry; mere recognition that the judgment is valid will suffice. As regards a decision on the exercise of parental responsibility, it will depend on the circumstances. If the parent to whom the exercise of that responsibility is not awarded is recalcitrant, a declaration of enforceability will be needed. If the parents are in agreement, mere recognition will be enough.

117. Chapter III, Section 1, of the Regulation concerns recognition. Article 21(1) provides for automatic recognition for any judgment falling within the scope of the Regulation. It is clear that the Community legislature intended all such judgments to enjoy, systematically, automatic recognition on the basis of the principle of mutual trust (see recitals 21 and 23 in the preamble). However, Article 21(3) allows an application for a decision that a judgment should, or should not, be recognised ‘in accordance with the procedures provided for in Section 2 of this Chapter’. Since Section 2 concerns applications for a declaration of enforceability, I infer that it deals with situations in which recognition and enforcement are both required. That is the case with the award of custody to the father in the present case, since the mother does not agree.

118. It is, moreover, clear from Article 31 of the Regulation that the procedure for obtaining a declaration of enforceability (which thus covers applications for recognition and non-recognition) must be simplified and expeditious. That appears perfectly in accordance with the principle of automatic recognition on the basis of mutual trust.

119. Thus, any request for recognition or non-recognition of a decision awarding custody of a child must comply with the procedures of Section 2. The problem which appears to arise in a context such as that of the present case is the apparent inequality of arms as between the parties, in the light of the wording of Article 31(1). If the parent awarded custody wishes to have the decision recognised and enforced, that parent may make such submissions as he or she sees fit, whereas the same opportunity is not available to the other parent. However, if the other parent seeks a decision of non-recognition, the situation is not reversed, at least on a literal reading of the provision.

120. In the submissions to the Court, it has been suggested that Article 31(1), which appears to be directed above all at applications for recognition or enforcement, should be interpreted either as applicable to applications for non-recognition mutatis mutandis (that is to say, by reading ‘the person against whom enforcement is sought’ as ‘the person opposing the application’) or as inapplicable to such applications.

121. I do not, however, consider that there is any overriding reason to reject a literal interpretation and application. The inequality of arms cannot be denied, but it accords with the primacy attached to mutual trust and recognition, it is less significant than one might suppose, and it is not such as to deprive the disadvantaged party of any possibility of presenting his or her arguments.

122. On the one hand, in the case of an application for recognition and enforceability brought by the parent awarded custody, it is clear that the court seised must in any event verify whether any of the grounds of non-recognition referred to in Article 31(2) are present. And those are the only grounds which the other parent could have raised. That parent is deprived therefore only of the possibility of developing his or her arguments concerning the grounds for refusal.

123. On the other hand, when it is the latter parent who seeks non-recognition of the decision, the application must necessarily be made by a document which sets out the grounds of non-recognition adduced. Even if that parent cannot expand further on those grounds at that stage of the proceedings, whereas the parent awarded custody may make such submissions as seem appropriate, his or her point of view will in any event be taken into account by the court seised. The situation is, in fact, one of a procedure limited to a single exchange of arguments between the parties, and it is hardly extraordinary in the context of a simplified and expeditious procedure.

124. In both cases, either party can appeal under adversarial rules, by virtue of Article 33 of the Regulation.

125. The system established thus provides a reasonable balance between the aim of ensuring the recognition and enforcement of judgments, on the basis of the principle of mutual trust, by means of a simplified and expeditious procedure, and the right to a fair hearing, which, in fact, is denied to neither party.

 Conclusion

126. For all the reasons I have set out above, I suggest that, in reply to the questions raised by the Supreme Court of Lithuania, the Court should rule that the provisions of Regulation (EC) No 2201/2003 are to be interpreted to the effect that:

–        the adoption of a decision ordering the return of the child by the court of the Member State of habitual residence after the court of the Member State where the child is actually present has ordered his or her return is in no way incompatible with the aims and procedural rules of the Regulation;

–        in principle, the issue of a certificate under Article 42 of the Regulation by the court of the Member State of habitual residence, in respect of a return order which it has made after the court of the Member State where the child is actually present has itself ordered his or her return does not comply with the procedural rules of the Regulation;

–        the fact that a non-return decision is issued by a court of the Member State where the child is actually present is sufficient to trigger the procedures provided for in Article 11(6) to (8) of the Regulation, whatever the subsequent fate of the decision, and in particular even if it is later appealed against or quashed;

–        when a court of a Member State has issued a judgment ordering the return of a child and has certified that judgment in accordance with the provisions of Article 42(2) of the Regulation, its competence to do so can be challenged only by appealing against the decision to the appropriate higher court of the same Member State, which precludes any possibility of review by the courts of the requested Member State;

–        when such a certificate has been issued, it is not possible to oppose recognition of the certified decision or, a fortiori, to make a separate application for a declaration that it should not be recognised;

–        in the case of other judicial decisions, opposition to which is not precluded by Article 42 of the Regulation, an interested party within the meaning of Article 21 may request non-recognition without any prior application for recognition having been brought;

–        in such a case, Article 31(1) of the Regulation allows such a party to set out the grounds for non-recognition adduced in the application, but not to respond to the arguments of the other party at that stage in the proceedings.

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1 – Original languages: French and English.

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2 – 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 (OJ 2003 L 338, p. 1) (‘the Regulation’).

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3 – Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (‘the Convention’ or ‘the Hague Convention’). Unlike the Regulation, the Convention does not contain any rules conferring jurisdiction. In that regard, the Regulation draws on the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children, which is not yet in force between all the Member States, and in particular not between Germany and Lithuania. It may be noted that, under Article 60, the Regulation takes precedence over the Convention in so far as the latter concerns matters governed by the Regulation.

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4 – I use this imprecise term, for the sake of brevity, to refer to both the first-instance Klaipėdos apylinkes teismas (Klaipėda District Court) and the second-instance Klaipėdos apygardos teismas (Klaipėda Regional Court).

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5 – According to Article 2(4) of the Regulation, the term ‘judgment’ means a divorce, legal separation or marriage annulment, as well as a judgment relating to parental responsibility, pronounced by a court of a Member State, whatever the judgment may be called, including a decree, order or decision.

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6 – Report available on the website of the Hague Conference on Private International Law, point 16. One may add the further justification that ‘the parent who removes the child has one absolute ally: time. As time passes, links with the old home environment become increasingly extenuated, and it becomes increasingly difficult to aspire to restore the former status quo’ (Hugues Fulchiron, ‘La lutte contre les enlèvements d’enfants’, in Le nouveau droit communautaire du divorce et de la responsabilité parentale, Dalloz, 2005). The prompt and effective return of the child is therefore an imperative requirement.

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7 – See also the ‘Practice Guide for the application of the new Brussels II Regulation’ (drawn up by the Commission in consultation with the European Judicial Network in civil and commercial matters, hereinafter ‘the Practice Guide’), Section VII, p. 37: ‘The Regulation aims at deterring parental child abduction between Member States and, if such nevertheless takes place, ensuring the prompt return of the child to his or her Member State of origin’.

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8 – I shall use henceforth the short form ‘Member State of habitual residence’ to refer to the State from which the child has been removed and where he or she was habitually resident before the removal.

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9 – Of 20 November 1989, ratified by all the Member States.

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10 – OJ 2000 C 364, p. 1 (more recently, in OJ 2007 C 303, p. 1).

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11 – See point 34 et seq. below.

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12 – We do not have a copy of this decision, but it appears to be common ground that the refusal was based on Article 13(b) of the Convention, which provides for such a possibility if ‘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’.

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13 – At the hearing, the agent for the German Government informed the Court that this decision was transmitted by the Lithuanian central authority to the German central authority, which notified it to the father’s lawyer but not, through an oversight, to the Oranienburg court. However, it is clear from that court’s judgment of 20 June 2007, and from the Brandenburg appeal court’s confirming judgment of 20 February 2008, that both those courts had cognisance of the decision.

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14 – Albeit, according to information given by counsel for the father at the hearing, a different Chamber.

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15 – It appears from the German judgments in the case-file that the mother was represented and able to submit observations, though not physically present, in the proceedings giving rise to the Oranienburg court’s judgments of 14 August 2006 and 20 June 2007, and that she was present and heard in the proceedings giving rise to the Brandenburg appeal court’s confirmatory judgment of 20 February 2008. That information was confirmed at the hearing before the Court of Justice, when the mother was again present.

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16 – Inasmuch as Articles 12 and 13 of the Convention do not determine jurisdiction but issue instructions to any competent court, and Article 11(1) to (5) of the Regulation refer to those articles.

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17 – Emphasis added.

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18 – It is clear from the words ‘connected with that application’ that the application must actually have been made; it is not enough for the court to have theoretical jurisdiction to decide on such an application.

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19 – The Commission’s Practice Guide considers, at point VII.2.4, that in order to ensure observance of the six-week time-limit imposed by Article 11(3) national law may (a) preclude the possibility of an appeal against a decision entailing the return of the child, or (b) allow for the possibility for appeal, but provide that a decision entailing the return of the child is enforceable pending any appeal, or (c) ensure an accelerated hearing of the appeal. It may also be noted that, in the same spirit, Lithuanian law appears to rule out any further appeal against the decision of the Court of Appeal of 15 March 2007 ordering the child’s return in the present case (even if other steps to reopen the proceedings do not seem to be impossible in reality).

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20 – The Spanish version, ‘aun cuando se haya dictado una resolución de no restitución ...’ would appear to lend itself even more easily to such an interpretation.

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21 – Emphasis added in each quotation. In paragraph 8, the majority of language versions speak of a judgment issued pursuant to Article 13.

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22 – It is however clear that there was indeed an order on non-return – see the considerations set out at point 64 above.

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23 – Even if it may seem a little odd, when a decision awards custody to one parent, to speak of enforcing that decision against the other parent, it seems to me clear from the scheme of Chapter III, Section 2, of the Regulation that the concept of ‘person against whom enforcement is sought’ covers a parent to whom custody was not awarded.