Case
Elaboration tutorial 6
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Tutorial 6 - Intercountry child abductionIn this session, we consider the rules on inter-country abduction by reference to a case
study.
Materials
● Regulation (EC) No 2201/2003 of 27 November 2003 (Brussels IIbis or Brussels IIa),
in particular the articles on parental responsibility and contact arrangements
● Hague Convention on Jurisdiction, Applicable Law, Recognition Enforcement and
Cooperation in respect of parental responsibility and Measures for the Protection of
Children (1996; or 1996 Hague Child Protection Convention)
● Hague Convention on the Civil Aspects of International Child Abduction (1980; or
1980 Hague Child Abduction Convention)
● A useful tool on the legal framework on child abduction is the specialized child
abduction section of the HCCH website. It includes inter alia explanatory documents,
good practice guides, case law databases (INCADAT) and statistics (INCASTAT)
○ https://www.hcch.net/en/instruments/conventions/specialised-sections/child-
protection
, Case
C-195/08 PPU Inga Rinau i
The “PPU” means that this case concerns a preliminary urgent procedure at the Court of
Justice (Procédure Préjudicielle d’Urgence).
Concerns Brussel IIbis. Application for non-recognition of a decision requiring the
return of a child wrongfully retained in another Member State.
Facts
Case of the Court of Justice of the European Union (CJEU). 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” (i.e. the time when the View was delivered [1.7.2008]) “in Lithuania
with the mother, against the wishes of the father. In the context of divorce proceedings, the
German courts awarded custody of the child to the father, and ordered that she be returned
to him” (cit View, para 1). Instead of applying then only for recognition of the German
decision before the competent Lithuanian court, the father started a full new procedure
there, and, after having obtained a Lithuanian judgement refusing the child’s return,
appealed against this decision instead of invoking an German order based on Article 11 (8)
of Regulation No 2201/2003 (which “would have been the last word”, cit View, para 36). After
a considerable number of proceedings having taken place in Germany as well as in
Lithuania, finally the supreme court of Lithuania decided to refer to CJ.
Application of the Mother for non-recognition in Member State Lithuania of a decision
delivered by a court in Member State Germany ordering the return of a child, who is
regarded as being unlawfully held by her mother in Member State Lithuania, to her father,
who is resident in Member State Germany and has been awarded custody of the child.
The mother applied in Lithuania for non-recognition of the German order but her application
was rejected. Nevertheless, the referring court stayed the enforcement proceedings and
referred several questions to the CJEU. The CJEU said that although intrinsically connected
with other matters governed by Brussels IIa, in particular rights of custody, the enforceability
of a judgment requiring the return of a child following a judgment of non return enjoys
procedural autonomy, so as not to delay the return of a child who has been wrongfully
removed to or retained in a Member State other than that in which that child was habitually
resident immediately before the wrongful removal or retention.
Essence
The Court (Third Chamber) hereby rules:
1. Once a non-return decision has been taken and brought to the attention of the court
of origin, it is irrelevant, for the purposes of issuing the certificate provided for in
Article 42 of Council Regulation (EC) No 2201/2003 of 27 November 2003 (Brussel
IIbis) concerning jurisdiction and the recognition and enforcement of judgments in
matrimonial matters and the matters of parental responsibility, repealing Regulation
(EC) No 1347/2000, that that decision has been suspended, overturned, set aside or,
in any event, has not become res judicata or has been replaced by a decision
ordering return, in so far as the return of the child has not actually taken place. Since
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