FIRST SECTION

Application no. 4097/13 M.A. against Austria lodged on 14 January 2013

STATEMENT OF FACTS

The applicant is an Italian national, who was born in 1968. The President granted the applicant ’ s request for his identity not to be disclosed to the public (Rule 47 § 3). He is represented before the Court by Mrs A. Mascia , a lawyer practising in Strasbourg.

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant entered into a relationship with D.P., an Austrian national and lived together with her in the Vittorio Veneto community. Their daughter, who is an Italian and Austrian national, was born in December 2006. Under Italian law the applicant and D.P. had joint custody of her.

The relationship between the applicant and D.P. deteriorated and the latter left their common home on 31 January 2008, taking their daughter with her.

The applicant requested the Venice Youth Court ( tribunale per i minorenni di Venezia ) to award him sole custody of the child and to issue a travel ban prohibiting her from leaving Italy without his consent.

On 8 February the Venice Youth Court issued a travel ban in respect of the applicant ’ s daughter. On the same day the applicant learned that D.P. had left Italy with the child and had travelled to Austria, where she intended to take up residence.

On 23 May 2008 the Venice Youth Court lifted the travel ban in respect of the applicant ’ s daughter, granted preliminary joint custody of the child to both parents, and authorised her residence with her mother in Austria having regard to her young age and close relationship with her mother. It also appointed an expert who was entrusted with the task of collecting the necessary information for a final decision on custody. Moreover, the court granted the applicant access rights twice a month in a neutral location, noting that the meetings should alternate between Italy and Austria and that the dates and arrangements should be agreed with the expert.

According to the applicant D.P. brought their daughter to Italy only once. Visits took place in Austria, although D.P. did not facilitate their organisation. Subsequently, no more visits took place allegedly due to D.P. ’ s obstructive behaviour. In a report of 15 May 2009 the expert noted that she was not in a position to evaluate the applicant ’ s aptitude to take care of his daughter.

1. Proceedings under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) and proceedings in Austria concerning custody of the applicant ’ s daughter

The applicant requested his daughter ’ s return under the Hague Convention. His request was forwarded via the respective central authorities in Italy and Austria to the Leoben District Court ( Bezirksgericht ) where the proceedings began on 19 June 2008. Subsequently, the court appointed an expert.

On 3 July 2008, the Leoben District Court dismissed the applicant ’ s request for the return of the child under the Hague Convention. Referring to the expert ’ s opinion and having regard to the very young age of the first applicant, the court found that her return would constitute a grave risk for her within the meaning of Article 13(b) of the Hague Convention.

On 1 September 2008, the Leoben Regional Court ( Landes ­ gericht ) set aside that decision because the applicant had not been duly heard in the proceedings.

On 21 November 2008 the Leoben District Court, having heard the applicant, again dismissed his motion for his daughter ’ s return, referring to the Venice Youth Court ’ s decision of 23 May 2008.

On 7 January 2009, the Leoben Regional Court dismissed the applicant ’ s appeal finding that the child ’ s return to him and her separation from her mother would entail a grave risk of psychological harm within the meaning of Article 13(b) of the Hague Convention.

Meanwhile, in March 2009 D.P. brought proceedings before the Judenburg District Court requesting to be awarded sole custody of the child.

On 26 May 2009 the Judenburg District Court held that it had jurisdiction with regard to custody, access and alimony issues in respect of the child by virtue of Article 15(5) of EU Regulation 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (“the Brussels IIa Regulation”).

On 25 August 2009 the same court granted preliminary sole custody to D.P., referring to the child ’ s close link with Austria and a danger to her well-being upon a possible return to Italy.

On 8 March 2010 the Judenburg District Court awarded D.P. sole custody of the child.

2. Proceedings under the Brussels IIa Regulation concerning the enforcement of the Venice Youth Court ’ s judgment of 10 July 2009

In the meantime, on 9 April 2009 the applicant made an application to the Venice Youth Court for his daughter ’ s return under Article 11(8) of the Brussels IIa Regulation .

In its judgment of 10 July 2009 the Venice Youth Court, having held a hearing, ordered the child ’ s return to Italy. The child would live with her mother, should the latter decide to return to Italy with her. In that case the Vittorio Veneto social services were required to provide accommodation to them. Moreover, a programme for the exercise of the applicant ’ s access rights would have to be established. If the child ’ s mother did not wish to return to Italy, the child was to reside with the applicant.

The Venice Youth Court found that it remained competent to deal with the case, as the Judenburg District Court had wrongly determined its jurisdiction under Article 15(5) of the Brussels IIa Regulation. It noted that its previous decision of 23 May 2008 had been designed as a temporary measure in order to re-establish contact between the applicant and his daughter through access rights and to obtain a basis for an expert opinion for the decision on custody. However, the child ’ s mother had failed to co-operate with the appointed expert and had refused a programme of access rights for the applicant prepared by the expert. The latter had stated in her preliminary opinion that she was not in a position to answer all questions relating to the child ’ s best interests in a satisfactory manner.

On 21 July 2009 the Venice Youth Court issued a certificate of enforceability under Article 42 of the Brussels IIa Regulation.

On 22 September 2009 the applicant requested the enforcement of the Venice Youth Court ’ s judgment of 10 July 2009.

On 12 November 2009 the Leoben District Court dismissed the applicant ’ s request. It noted that the child ’ s mother was not willing to return to Italy with her. However, the child ’ s return without her mother would constitute a grave risk for her within the meaning of Article 13(b) of the Hague Convention.

On 20 January 2010 the Leoben Regional Court quashed that decision and granted the applicant ’ s request for the enforcement of the Venice Youth Court ’ s order to return the child.

The Leoben Regional Court noted that under Article 11(8) of the Brussels IIa Regulation a judgment refusing return under Article 13 of the Hague Convention was not relevant where the court which was competent pursuant to the Brussels IIa Regulation had ordered the child ’ s return in a subsequent judgment. It confirmed that the Venice Youth Court had been competent to issue the judgment of 10 July 2009, as D.P. had unlawfully removed the child from Italy and the applicant had immediately requested her return. Moreover, the applicant had submitted a certificate of enforceability under Article 42 of the Brussels IIa Regulation in respect of the judgment at issue. The Austrian courts therefore had to recognise the judgment and to enforce it. They did not have to establish anew whether the first applicant ’ s return would be against her best interests. In any event, there was no indication that the circumstances had changed since the Venice Youth Court had given its judgment. It was for the court of first instance to order appropriate measures of enforcement.

D.P. lodged an appeal on points of law with the Supreme Court ( Oberster Gerichtshof ) on 16 February 2010.

On 20 April 2010 the Supreme Court requested a preliminary ruling by the Court of Justice of the European Union (CJEU), submitting a number of questions concerning the application of the Brussels IIa Regulation.

On 1 July 2010, the CJEU issued a preliminary ruling (C-211/10 PPU) confirming the jurisdiction of the Italian courts in the case and the enforceability of the Venice Youth Court ’ s judgment of 10 July 2009. It found, in particular, that

(1) a provisional measure [as the one issued by the Venice Youth Court in 2008] did not constitute a ‘ judgment on custody that does not entail the return of the child ’ within the meaning of Article 10(b) subparagraph (iv) of the Brussels IIa Regulation and could not be the basis of a transfer of jurisdiction to the courts of the Member State to which the child had been unlawfully removed;

(2) Article 11(8) of the Regulation applied to a judgment of the court with jurisdiction ordering the return of the child, even if it was not preceded by a final judgment of that court relating to rights of custody of the child.

(3) Article 47(2) subparagraph (2) of the Regulation had to be interpreted as meaning that a judgment delivered subsequently by a court of the Member State of enforcement which awarded provisional rights of custody, could not preclude enforcement of a certified judgment delivered previously by the court which had jurisdiction in the Member State of origin and had ordered the return of the child;

(4) Enforcement of a certified judgment [ordering the child ’ s return] could not be refused by the Member State of enforcement because, as a result of a subsequent change of circumstances, it might be seriously detrimental to the best interests of the child. Such a change had to be pleaded before the court which had jurisdiction in the Member State of origin which also had to hear any application to suspend the enforcement of its judgment.

On 13 July 2010 the Supreme Court dismissed D.P. ’ s appeal on points of law. It noted that according to the CJEU ’ s ruling the Austrian courts ’ only task was to take the necessary steps for the enforcement of the return order, without proceeding to any review of the merits of the decision. If the second applicant asserted that the circumstances had changed since the Venice Youth Court had given its judgment, she had to apply to that court which would also be competent to grant such an application suspensive effect.

The Supreme Court noted that it was now for the first instance court to enforce the Venice Youth Court ’ s judgment. In doing so, it had to take into account that that the Venice Youth Court had envisaged in the first place that the child should reside with her mother upon her return to Italy and had ordered the social service of the Vittorio Veneto community to make accommodation available to them. The first instance court would therefore have to request the applicant to submit appropriate evidence, in particular confirmation by the Venice Youth Court or by the Vittorio Veneto community, that accommodation was indeed available. The first instance court would then have to order the mother to return with the child within two weeks. Should she fail to comply within that time-limit, he first instance court would, upon the applicant ’ s request, have to order coercive measures for the child ’ s return, while still giving a possibility to the mother to avoid such drastic measures by returning to Italy with the child.

On 31 August 2010 the Venice Youth Court refused to grant a request by D.P. for the enforcement of its judgment of 10 July 2009 to be stayed. Referring to that decision, the applicant requested the Leoben District Court to order his daughter ’ s return to Italy.

The applicant claims that he proposed to make accommodation (apparently a flat belonging to him) available to D.P. and his daughter, but that the Leoben District Court found that this did not fulfil the conditions set by the Venice Youth Court in its judgment of 10 July 2009.

On 17 February 2011 the Leoben District Court requested the applicant to submit evidence that appropriate accommodation would be made available to his daughter and her mother by the social services of the Vittorio Veneto community, as required by the Venice Youth Court ’ s judgment of 10 July 2009.

By letter of 22 March 2011 the Austrian Federal Ministry of Justice informed its Italian counterpart accordingly and also noted that so far the condition had not been complied with. A similar letter was sent to the Italian authorities on 27 May 2011.

3. Proceedings under the Brussels IIa Regulation concerning the enforcement of the Venice Youth Court ’ s judgment of 23 November 2011

By a judgment of 23 November 2011 the Venice Youth Court withdrew D.P. ’ s custody rights and awarded the applicant sole custody of the child. It further ordered the child ’ s return to Italy to reside with the applicant in the Vittorio Veneto community. The court ordered the Vittorio Veneto social services – if need be in co-operation with the neuro -psychiatric service of the local health authority – to see to maintaining contact between the child and her mother and to give the child linguistic and pedagogic support for her integration into her new family and social environment.

The Venice Youth Court referred to its decision of 23 May 2008 which had aimed at preserving the child ’ s relationship with her mother while re-establishing contact with the applicant, noting that such attempts had failed owing to lack of co-operation from the mother. It had therefore ordered the child ’ s return to Italy in its judgment of 10 July 2009. It further considered that D.P. had unlawfully removed the child to Austria and had subsequently deprived her of having any contact with the applicant without good reason. She had thus acted against the child ’ s best interests. It therefore found that sole custody was to be awarded to the applicant. Since so far any attempts to establish contact step by step had failed, his daughter was to reside with him immediately. The court noted that this would entail a difficult transition for her but considered that the damage of growing up without her father would weigh even heavier. The court considered that the social service would have to give the child pedagogical and linguistic support to settle in her new family and social environment and to maintain contact with her mother. Finally, the court considered that the child ’ s return would not entail any grave risk of psychological or physical harm within the meaning of Article 11 of the Brussels IIa Regulation, which in turn referred to Article 13 of the Hague Convention.

D.P. did not appeal against this judgment.

On 19 March 2012 the applicant notified the Leoben District Court of the Venice Youth Court ’ s judgment of 23 November 201. He also submitted a certificate of enforceability u nder Article 42 of the Brussels IIa Regulation.

On 3 May 2012 the Leoben District Court dismissed the applicant ’ s request for the order of the child ’ s return. Referring to the Supreme Court ’ s decision of 13 July 2010, it considered that he had failed to submit proof that appropriate accommodation would be available for the child and her mother upon their return.

The applicant appealed. He submitted, in particular, that the Venice Youth Court ’ s judgment of 23 November 2011 had granted him sole custody of the child and had ordered her return to Italy, where she would reside with him.

On 15 June 2012 the Leoben Regional Court granted the applicant ’ s appeal and ordered D.P. to hand the child over to the applicant within fourteen days, noting that enforcement measures would be taken in case of failure to comply.

The Regional Court found that the condition that appropriate accommodation be made available to the child and its mother was no longer valid: in its judgment of 23 November 2011 the Venice Youth Court had awarded sole custody of the child to the applicant and had ordered that she return to reside with him. The applicant had submitted that judgment together with a certificate of its enforceability under Article 42 of the Brussels IIa Regulation. The mother ’ s obligation to return the child to the applicant thus resulted directly from the Venice Youth Court ’ s judgment of 23 November 2011. Finally, the Leoben Regional Court noted that the custody decision of the Judenburg District Court of 8 March 2010 could not prevent the enforcement of the Venice Youth Court ’ s judgment. The latter had retained its competence to rule on custody, as D.P. had unlawfully removed the child to Austria and the applicant had made a timely request for her return under Article 10 of the Brussels IIa Regulation.

D.P. did not comply with the return order. She lodged an extraordinary appeal on points of law with the Supreme Court.

On 13 September 2012 the Supreme Court rejected D.P. ’ s extraordinary appeal on points of law as the case did not raise an important legal issue. It noted that the return order had become final and was enforceable. The first-instance court now had no other task than to define the steps to be taken to enforce the return order. The CJEU had clarified that where there was a certificate of enforceability under Article 42(1) of the Brussels IIa Regulation, the requested court had to proceed to the enforcement. Any questions relating to the merits of the return decision, in particular the question whether the requirements for ordering a return were met, had to be raised before the courts of the requesting State in accordance with the laws of that State. Consequently, any change in circumstances affecting the question whether a return would endanger the child ’ s well-being had to be raised before the competent court of the requesting State. D.P. ’ s argument that the child ’ s return would lead to a serious harm for her and entail a violation of Article 8 of the Convention was therefore not relevant in the proceedings before the Austrian courts but had to be raised before the competent Italian courts.

On 1 October 2012 the Leoben District Court held that it was not competent to conduct the enforcement proceedings and transferred the case to the Wiener Neustadt District Court appa rently on account of a change of residence by D.P. and the child.

On 4 October 2012 the Wiener Neustadt District Court issued a decision on the next steps to be taken in the enforcement proceedings. The judge noted, in particular, that a continuation of the path chosen by both parents, namely the use of the child in the conflict between them, would lead to the child ’ s traumatisation, especially if the parents ’ unbending position eventually led to an enforcement of the return order by coercive measures as a last resort. He noted that the best interests of the child required the parents to reach a workable compromise. The judge therefore proposed that a hearing in the presence of both parents be organised in order to seek a constructive solution. Accordingly, he requested both parents to indicate within two weeks whether they were ready to participate in the proposed meeting. The judge further noted that if the parents were not willing to participate in the hearing, the enforced return of the child would be arranged. In this context the judge stated that any trauma suffered by the child because of such enforcement would then have to be laid at the door of the parents. Moreover, the applicant would be required to find a way to deal with the trauma caused to the child.

On 16 October 2012 the applicant informed the Wiener Neustadt District Court that he was not ready to participate in a hearing with the child ’ s mother, but wanted to arrange the return of the child with the least traumatic impact possible. He therefore suggested that he come to Austria with his parents to pick up the child or, alternatively, that the second applicant travel to Italy with the child to hand her over. He therefore requested the second applicant to either fix a pick-up date in Austria or to inform him of a date when she would bring the child to Italy.

On 23 October 2012 D.P. informed the District Court that she was ready to take part in the proposed hearing. She also informed the court that she had appealed against the decision which had transferred the case from the Leoben District Court to the Wiener Neustadt District Court. Consequently, the decision establishing the latter court ’ s competence had not become final. She therefore requested the court to await the decision on her appeal before taking any further steps. The enforcement proceedings appear to be still pending.

In a decision of 20 May 2013 the Wiener Neustadt District Court ordered D.P. to hand over the child to the applicant by 7 July 2013 and stated that in case of failure to comply coercive measures would be applied. The District Court noted that it was for D.P. to choose whether she would accompany her daughter to Italy or whether she would fix a date within that time-limit for the applicant to pick up the child in Austria. Furthermore, the District Court referring to the Supreme Court ’ s judgment of 13 September 2012, repeated that it was for the Italian courts to examine any question relating to the child ’ s well-being. It noted finally, that the deadline for handing over the child had been fixed in such a way as to allow her to fin ish the school year in Austria.

COMPLAINT

The applicant complains under Article 8 of the Convention that the Austrian courts violate his right to respect for his family life in that they have failed to enforce the Italian court ’ s judgments ordering the return of his daughter.

QUESTIONS TO THE PARTIES

1. Has the applicant complied with the six-month time-limit laid down in Article 35 § 1 of the Convention insofar as he complains about the Austrian courts ’ failure to enforce the Venice Youth Court ’ s judgment of 10 July 2009?

2. Has there been a violation of the applicant ’ s right to respect for his family life, contrary to Article 8 of the Convention?

In particular, if the first question is answered in the affirmative, which procedural steps were taken after the Supreme Court ’ s judgment of 13 July 2010 with a view to enforcing the Venice Youth Court ’ s judgment of 10 July 2009?

Furthermore, which procedural steps were taken with a view to enforcing the Venice Youth Court ’ s judgment of 23 November 2011 and what is the current state of proceedings?