CYIL vol. 10 (2019)

ELENA JÚDOVÁ CYIL 10 ȍ2019Ȏ The mother, an Austrian citizen, left Italy and settled with the child in Austria without the consent of her child’s father, thereby committing a so-called child abduction within the meaning of the 1980 Hague Convention on the Civil Aspects of International Child Abduction (Art. 3), and EU Regulation no 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, Brussels II. bis regulation (Art. 2 (11)). The aim of the Hague Convention was to prevent and remedy sensitive situations when a child without a legal title is taken out of the social and family environment in which he or she grows up, by a person from the family environment of the child,. To fulfil this objective, the Hague Convention establishes a system of cooperation between the Contracting States, which requires the Contracting States, at the request of the entitled person, to return the child without delay to the State of his/her original habitual residence. 24 It is only possible to refuse the return for one of the reasons provided in Article 12 and 13 of the Hague Convention, among others that the person having custody rights has consented with a removal, or has not actually cared for the child, or that there is a risk that return would expose the child to physical or mental harm. The cooperation in the European Union goes even further. In an effort to make the child’s return even more effective and thus prevent child abduction in the EU, the Brussels II.bis Regulation creates a mechanism allowing to reverse the refusal of a return in accordance with Articles 12 or 13 of the 1980 Hague Convention. In the case of Povse against Austria , after the wrongful removal of the minor, Sofia Povse, by her mother from Italy to Austria, the Italian father of the child, Mr Alpago, applied for the return of his daughter to Italy. The Austrian court refused the return of the child by referring to Article 13(b) of the Hague Convention, because of the young age of the child (at the time of making a decision about the return, 18 months), there were reasonable concerns that the return and separation from the mother would expose the child to serious psychological harm. Under the Hague Convention, this decision would be final, eventually final after all domestic remedies have been exhausted. However, according to the Brussels II.bis Regulation a court of the Member State in which the child was habitually resident immediately before the wrongful removal, i.e., the Italian court, may have the final say. On condition that, following a decision not to return the child taken by the court of the country where the child was wrongfully removed (Austria), the one who requested the return of the child, makes submission to the court of the child’s habitual residence before wrongful removal (Italy) and continues to apply for the return of the child, the latter court can still order the return of the child (Article 11(7)(8) of the Brussels II.bis Regulation). Its decision is enforceable in any other Member State without the possibility of refusing enforcement (Article 42 of the Brussels II.bis Regulation). The Italian court thus ordered the return of minor Sofia Povse and the Austrian court was obliged to enforce this subsequent return order without any possibility to examine the Italian court´s decision and refuse its enforcement. This was also confirmed by the Court of Justice of the EU (hereinafter referred to as CJ EU) in response to the Austrian court’s request

24 See Explanatory report to the Hague Convention on the Civil Aspects of International Child Abduction, § 9 and following, (Retrieved from www.hcch.net).

428