For those seeking drama, action, and great narratives--stop reading now! Unless you are interested in technical EU jurisdictional procedure, this post will bore and confuse. But for fellow legal supergeeks, read on!
In one of the 10 or so EC Regulation 2201/2003 cases that the European Court of Justice ("ECJ") has heard, Povse is likely one of the driest ones going. The case revolves around a dispute between two unmarried parents seeking custody over their daughter--but turns into a dispute between the Austrian and Italian courts over recognizing custody orders.
I will try to get this post over with as quickly and painlessly as possible.
Facts: Mom and Dad had joint custody in Italy. Italian court ordered Mom not to leave Italy with Daughter. Mom left.
Procedure: Dad sought Daughter's return from an Austrian court the next month. Meanwhile, an Italian court issued a provisional order that permitted the child to provisionally remain in Austria and provisionally gave mother full control of custodial decisions.
Then, the Austrian courts ultimately refused Father's petition and asked the Italian court to hand over jurisdiction. The Italian court declined, asserting that it still had jurisdiction. The Italian court ordered the child's return from Austria and sent a certificate of enforcement to their sister court in Austria.
The Austrian court denied the return because it found that the return would pose a grave risk of psychological harm to the child. The Austrian appellate court overturned that decision. On appeal to the Oberster Gerichthof (Austrian Supreme Court), the Court sought a preliminary ruling on 2201/2003's interpretation, posing five questions.
Issues and the ECJ's reasoning:
First question: (In my words) Did the provisional order from the Italian court shift jurisdiction to the Austrian court?
As relevant to this case, Article 10 basically says that the court in the previous habitual residence will keep jurisdiction unless a year has passed, the other parent knew where the child was,the child has settled, and the court in the previous habitual residence has made a order in the child's absence that did not order the child's return.
So, the Austrian courts wanted to know whether the provisional order from the Italian court was "a judgment on custody that does not entail the return of the child." A plausible argument based solely on the words (you can blame the lawyers who wrote the Regulation and the lawyers who pointed out the poor wording).
From the start, Austria had an uphill battle considering that, as per Recital 21 from 2201/2003's Preamble, "based on the principle of mutual trust[,] the grounds for non-recognition should be kept to the minimum required."
With that in mind, the ECJ declared that to deter abductions, courts must interpret Article 10 strictly. Thus, a "provisional measure does not constitute a ‘judgment on custody that does not entail the return of the child’ within the meaning of that provision, and cannot be the basis of a transfer of jurisdiction to the courts of the Member State to which the child has been unlawfully removed." Thus, the "judgment on custody that does not entail the return of the child" must be a final one.
Second question: (My words) Did the Italian court have to make a final custody decision before ordering the child's return?
No. The ECJ tore this one apart--and rightly so. Legally, nothing in 2201/2003 suggests this requirement. Logically, how could a court make a final custody decision if the child is not physically present?
Third question: Happily, the ECJ tossed this question because of the answer to the previous two.
Fourth question: (My words) Did the Italian provisional order invalidate the Italian certificate for enforcement?
Answer: No. Here, the ECJ took a hard line, reinforcing the strong language in Recital 24, which states that certificates for enforcement are not subject to appeal unless they have a material error--i.e., that they do not "correctly reflect the judgment."
Fifth question: (my words) Could the Austrian courts refuse follow the Italian enforcement order because of the grave risk of harm exception?
Answer: No. The requested state only has discretion on procedural matters. Once the certificate of enforcement is in play, the requesting court will determine the best interests of the child.
There you have it folks, no, no, no, and no--the child returns to Italy. If you made it this far in this post, send me and email and maybe we can start a support group for hopelessly nerdy international family law buffs...