FIRST SECTION

Application no . 3890/11 Sofia POVSE and Doris POVSE against Austria lodged on 18 January 2011

STATEMENT OF FACTS

THE FACTS

The first applicant , Ms Sofia Povse , is an Austrian and Italian national, who was born in 2006 . The second applicant, Ms Doris Povse , is an Austrian national born and 19 76. They live in Berndorf and are represented before the Court by Mr F. Beglari , a lawyer practising in Judenburg .

A. The circumstances of the case

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

In 2005 t he sec ond applicant, who had already been living and working in Italy for a couple of years, entered into a relationship with A. , an Italian national. From September 2006 they were living together in A . ’ s apartment in the Vittorio Veneto community. The first applicant , born in December 2006, is the couple ’ s daughter . Under Italian law the second applicant and A . had joint custody of her.

The relationship betwee n A . and the second applicant deteriorated. In December 2007 they had a violent dispute during which A. allegedly hit the second applicant in the face. The second applicant did not report this incident to the Italian police. In January 2008, following a further dispute during which A . allegedly lifted the first applicant and shook her violently and sp a t at the second applicant, the applicants left A . ’ s apartment.

On 4 February 2008 A . re quested the Venice Youth Court ( tribunale per i minorenni di Venecia ) to award him sole custody of the first applicant and to issue a travel ban prohibiting her from leaving Italy with the second applicant.

On 8 February 2008 the applicants travelled to Austria . It appears that on the same day the Venice Youth Court issued a travel ban for the first applicant.

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

On 16 April 2008 A . requested the Leoben District Court ( Bezirksgericht ) to order the first applicant ’ s return under the Hague Convention.

On 23 May 2008 the Venice Youth Court lifted the travel ban for the first applicant, granted preliminary joint custody of the child to both parents, and authorised her residence with her mother in Austria due to her young age and close relationship with her mother. It also granted A . monthly acces s rights in a neutral location.

On 6 June 2008, the Judenburg District Court , on the second appli c ant ’ s request, granted an interim injunction against A . prohibiting him from contact ing the applicants for three months . T he c ourt noted that A . had sent the second applicant more than 240 threatening SMS , had called her by phone up to 50 times per day and had sent her an e - mail showing a video of a post-mortem of a female corpse. The court also noted that A . had not responded to its request to submit his arguments.

On 3 July 2008, the Leoben District Court dismissed A . ’ s motion to return the child under the Hague Convention . Referring to an expert 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 w ithin the meaning of Article 13 (b) of the Hague Convention. The ps ychological expert opinion of 1 July 2008 had shown a stable and loving relationship between mother and child and had warned that the child ’ s separation from her main caregiver would traumatise her and endanger her psychological development .

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

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

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

Between October 2008 and June 2009, A . met his daughter fifteen times in a family centre in Knittelfeld . A . then allegedly cancelled three meetings and made it known that he would not to come to any meetings after June 2009.

Meanwhile, i n March 2009 t he second applicant brought proceedings before the Judenburg District Court requesting to be awarded sole custody of the first app l icant.

On 26 May 2009, the Judenburg District Court held that it had jurisdiction with regard to custody, access and alimony issues concerning the first a pplicant pursuant to Article 15 (5) o f 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 the second applicant referring to the child ’ s close link to Austria and a danger for her well-being upon a possible return to Italy .

On 8 March 2010, the Judenburg District Court awarded the second applicant sole custody of the first applicant.

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

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

O n 10 July 2009 , the Venice Youth Court ordered the first applicant ’ s return to Italy . The child would live with her mother, the se cond applicant, should the latter decide to return to Italy with her. In that case the Vittorio Veneto social service was required to provide lodging and practical support for the applicants . Moreover, a programme for the exercise of A . ’ s access rights would have to be prepared. In case t he second applicant did not wish to return to Italy , the first applicant was to stay with her father A.

The Venice Youth Court found that it remained competent to deal with the case , as the Judenburg District Court had wrongly established it s 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 first applicant and her father through access rights and to obtain a basis for an expert opinion for the decision on custody. However, the second applicant had failed to co-operate with the appointed expert and had refused a programme for the father ’ s access rights 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.

It appears that the second applicant made written submissions in the proceedings before the Venice Youth Court and was represented by counsel at hearings.

On 22 September 2009 A . requested the enforcement of the return order.

On 12 November 2009, the Leoben District Court dismissed A . ’ s motion. It note d that the second applicant was not willing to return to Italy with the first applicant. However, the first applicant ’ s return to Italy without her mother would constitute a grave risk for the child .

On 20 January 2010, the Leoben Regional Court quashed that decision and granted A . ’ s motion to enforce the Venice Youth Court ’ s order to return the child . It noted that und er Article 11 (8) of the Brussels IIa Regulation, a decision refusing return under Article 13 of the Hague Convention was not relevant, where the court which was com petent pursuant to the Brussels IIa Regulation ordered the child ’ s return in a subsequent decision. It confirmed that the Venice Youth Court had been compet ent to issue the decision of 10 July 2009, as the second applicant had unlawfully removed the first applicant from Italy and A . had immediately requested her return. Moreover, A . had submitted a certificate of enf orceability pursuant to Article 42 of the Brussels IIa Regulation for the decision at issue. T he Austrian courts therefore had to recognise the decision 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 You th Court had taken its decision . It was for the court of first instance to order appropriate measures of enforcement.

The second applicant lodged an appeal on point s of law with the Supreme Court ( Oberster Gerichtshof ) . She submitted in particular that the Austrian courts were competent to deal with custody matters concerning the first a pplicant pursuant to Article 10 (b) su bparagraph (iv) of the Brussels IIa Regulation, as the Venice Youth Court had accepted the child ’ s residence in Austria in its decision of 23 May 2008. Moreover, the return order of the Venice Youth Court of 10 July 200 9 did not fall under Article 11 (8) of that Regulation as it did not contain a decision on custody. Moreover, that decision had not taken the child ’ s best interests into account. The transfer of preliminary sole custody to the second applicant by decision of the Judenburg District Court of 26 May 2009 hindered the enforcement of the retu rn order pursuant to Article 47 (2) of the Brussels IIa Regulation. Finally, the circumstances had changed after the Venice Youth Court had issued its decision of 10 July 2009 in that A . had refused to exercise his access rights. The first applicant had therefore not seen her father since mid- 2009. The enforcement of the return order would therefore violate the child ’ s best interests.

The Supreme Court requested a preliminary ruling by the Court of Justice of the European Union (ECJ) submitting a number of questions concerning the application of the Brussels IIa Regulation .

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

- a preliminary custody decision (as given by the Venice Youth C ourt in 2008 ) was not apt to transfer jurisdiction under Article 10 (b) subparagraph (iv) of the Brussels IIa Regulation to the courts of the State to which the child had been wrongfully removed;

- Article 11 (8) of the Regulation applied also in a case in which the competent court made a return order which was not combined wit h a final decision on custody.

- under Article 47 (2) subparagraph (2) of the Regulation a decision on custody by the requested State ’ s courts that was issued after the return decision of the competent court could not hinder the enforcement of the return order which was accompanied by a certificate of enforceability;

- the courts of the requested State could not refuse the enforcement of a return order accompanied by a certificate of enforceability on the ground that the return would entail a grave risk for the child due to a change of circumstances. Any such change of circumstances had to be brought before the court s of the requesting Sta te, for instance by applying for a stay of the enforcement of the decision .

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

On 31 August 2010 the Venice Youth Court refused to grant the second applicant ’ s request to stay the enforcement of its decision of 10 July 2009 , by which it had ordered the first applicant ’ s return tog ether with the second applicant or, in the alternative, her return to her father . Referring to this decision A. requested the Leoben District Court to order the first applicant ’ s return to Italy .

On 17 February 2011 the Leoben District Court requested A. to show that appropriate housing would be available for the applicants, as this had been a condition set by the Venice Youth Court ’ s decision of 10 July 2009.

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

On 23 November 2011 the Venice Youth Court withdrew the second applicant ’ s custody rights and awarded sole custody of the first applicant to her father, A. It ordered the first applicant ’ s return to her father in Italy where she would reside with him in the Vittorio Veneto community. The court ordered the Vittorio Veneto social service – if need be in co-operation with the neuro -psychiatric service of the local health authority – to see to maintaining contacts between the first and the second applicants and to give the first applicant linguistic and pedagogic support for her integration in her new family and social environment .

The Venice Youth C ourt referred to its decision of 23 May 2008 which had aimed at preserving the first applicant ’ s relationship with her mother while re-establishing contacts with her father, noting that these attempts had failed due to lack of co-operation from the second applicant. It had therefore ordered the first applicant ’ s return to Italy in its decision of 10 July 2009. It further considered that the second applicant had unlawfully removed the first applicant to Austria and had subsequently deprived her of having any contacts with her father 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 father. Since so far any attempts to establish contacts step-by-step had failed, the first applicant was to reside with him immediately. The court noted that this would entail a difficult transition for the first applicant 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 first applicant pedagogical and linguistic support to settle in her new family and social environment and to maintain contacts with her mother. Finally, the court considered that the first applicant ’ s return would not entail any grave risk of psychological or physical harm within the meaning of Article 11 of the Brussels II a Regulation which in turn referred to Article 13 of the Hague Convention .

The applicants did not appeal against this decision. A. notified this decision to the Leoben District Court on 19 March 2012. 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 A. ’ s request to order the first applicant ’ s return. It considered that he had failed to submit proof that adequate housing would be available for the first and second applicants upon their return.

On 15 June 2012 the Leoben Regional Court granted A. ’ s appeal and ordered the second applicant to hand over the first applicant to her father A. within 14 days noting that enforcement measures would be taken in case of failure to comply .

The Regional C ourt found that the condition that appropriate housing be made available to the applicants was no longer valid: In its decision of 23 November 2011 the Venice Youth Court had awarded sole custody of the first applicant to A. and had ordered that she be returned and reside with him. A had submitted this decision as well as a certificate of its enforceability under Article 42 of the B r ussels IIa Regul ation. The second applicant ’ s obligation to return the first applicant to her father thus resulted directly from the Venice Youth Court ’ s decision 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 hinder the enforcement of the Venice Youth Court ’ s decision. The latter had retained its competence to rule on custody, as the second applicant had unlawfully removed the first applicant to Austria and A . had made a timely request for her return unde r Article 10 of the Brussels II a Regulation.

The Leoben Regional Court ’ s decision was served on the applicants ’ counsel on 27 June 2012. The time-limit for the second applicant ’ s return to her father in Italy thus expired on 11 July 2012.

The second applicant 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 the second applicant ’ 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 EJC had clarified that in case of 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 of 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. The second applicant ’ s argument that the first applicant ’ s return would lead to a serious harm for the child 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 befo re 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.

On 4 October 2012 the Wiener Neustadt District Court iss ued a decision concerning the next steps to be taken in the enforcement proceedings. The judge noted in particular that a continuation of the way chosen by both parents, namely the use of the child in the conflict between them , would lead to a traumatisation of the first applicant, especially if the parents ’ unbending position would eventuall y lead to an execution of the return order by enforcement measures which were the last resort. He noted that the best interests of the child required the parents to reach a workable compromise. The judge therefore envisaged to organise a hearing in presence of both parents in order to seek a cons tructive 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 th at if the parents were not willing to participate in the hearing, the enforced return of the child would be organised. In this context the judge stated that any trauma suffered by the fir st applicant because of such enforcement would then have to be blamed on the parents . In p articular the child ’ s father would be required to think of ways and means of how to deal with the trauma caused to the child.

On 16 October 2012 A . informed the Wiener Neustadt District Court that he was not ready to participate in a hearing with the second applicant, but certainly wanted to organise the return of the child with the least traumatic impact possible. He therefore proposed to 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 the date on which she would bring the child to Italy .

On 23 October 2012 the second applicant informed the District Court that she was ready to take part in the hearing proposed. 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 Wiener Neustadt District Court ’ s competence had not become final. She therefore requested the court to await the decision on her appeal before taking any further steps.

Finally, the second applicant argued that if enforcement measures had to be taken, those had to be taken in accordance with A ustrian law pursuant to Article 47 of the Brussels IIa Regulation. Austrian law, namely section 110 (3) of the Non-Contentious Proceedings Act which allowed the court to refrain from an enforcement if the child ’ s interests were at risk . The second applicant drew attention to the fact tha t the first applicant, who was about six years old, had not seen her father since mid-2009 and did not speak Italian, while A . did not speak German. A return as envisaged by A . would traumatise the child as would the application of any coercive measures. The only way of avoiding this was to build up the relationship between the first applicant and her father step-by-step. She therefore requested the Wiener Neustadt District Court to order A. to come to Austria as often as was necessary to establish a re lationship with the child and to organise her return to Italy without having recourse to coercive measures.

4. The applicants ’ current family situation

Since their arrival in Austria in February 2008 the first applicant has been living with the second applicant. In 2009 the second applicant entered into a relationship with a new partner. She gave birth to a son in March 2011. The second applicant her new partner and the two children are living in a common household. It appears that the first applicant does not speak Italian and ha s not seen her father since mid- 2009.

5. Criminal proceedings against the second applicant in Italy

The second applicant submitted document s by the Treviso Public Prosecutor from which it appears that criminal proceedings are pending against her for having removed the first applicant from her father ’ s parental author ity against the latter ’ s will . One document is a summons to appear before the Treviso Court on 5 July 2010. The second applicant replied through he r counsel requesting to be hear d in Austria under letters rogatory . A further document of the Treviso Public Prosecutor dated 23 November 2012 confirms that criminal investigations against the second applicant for having removed the first applicant from her fat her ’ s parental authority are pending.

B. Relevant international law

The relevant provisions of the Hague Convention on the Civil Aspects of International Chil d Abduction of 25 October 1980 read as follows:

Article 1

“The objects of the present Convention are:

(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State ; and

(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”

Article 3

“The removal or the retention of a child is to be considered wrongful where:

(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”

Article 4

“ The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years. ”

Article 11

“The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.

If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. ...”

Article 12

“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child. ”

Article 13

“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:

...

(b) 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.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child ’ s habitual residence.”

The relevant provisions of Council Regu lation (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 (“Brussels IIa Regulation”) read as follows:

Article 1

“ 1. This Regulation shall apply, whatever the nature of the court or tribunal, in civil matters relating to:

(a) divorce, legal separation or marriage annulment;

(b) the attribution, exercise, delegation, restriction or termination of parental responsibility.

2. The matters referred to in paragraph 1(b) may, in particular, deal with:

(a) rights of custody and rights of access;

(b) guardianship, curatorship and similar institutions;

(c) the designation and functions of any person or body having charge of the child ’ s person and property, representing or assisting the child;

(d) the placement of the child in a foster family or in institutional care;

(e) measures for the protection of the child relating to the administration, conservation or disposal of the child ’ s property.

... ”

Article 10

“ In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and:

(a) each person, institution or other body having rights of custody has acquiesced in the removal or retention;

or

(b) the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met:

( i ) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained.

(ii) a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph ( i );

(iii) a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11 (7);

(iv) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention. ”

Article 11

“1. Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter ‘ the 1980 Hague Convention ’ ), in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention , paragraphs 2 to 8 shall apply.

2. When applying Articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity.

3. A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law.

Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make it impossible, issue its judgment no later than six weeks after the application is lodged.

4. A court cannot refuse to return a child on the basis of Article 13b of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return.

5. A court cannot refuse to return a child unless the person who requested the return of the child had been given an opportunity to be heard.

6. If a court has issued an order on non-return pursuant to Article 13 of the 1980 Hague Convention, the court must immediately either directly or through its central authority , transmit a copy of the court order on non-return and of the relev ant documents, in particular a transcript of the hearings before the court, to the court with jurisdiction or c entral authority of the Member State where the child was habitually resident immediately before the wrongful removal or retention, as determined by national law. The court shall receive all the mentioned documents within one month of the date of the non-return order.

7. Unless the court s in the Member State where the child was habitually resident immediately before the wrongful removal or retention have already been seized by one of the parties, the court or central authority that receives the information mentioned in paragraph 6 must notify it to the parties and invite them to make submission to the court, in accordance with national law, within three months of the date of notification so that the court can examine the question of custody of the child.

Without prejudice to the rules on jurisdiction con tained in this Regulation, the c ourt shall close the case if no submissions have been receiv ed by the court within the time limit.

8. Notwithstanding a judgment 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 under this Regulation shall be enforceable in accordance with Section 4 of Chapter II I below in order to secure the return of the child.”

Article 42

“1. 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 the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph 2.

Even if national law does not provide for enforceability by operation of law, notwithstanding any appeal, of a judgment requiring the return of the child mentioned in Article 11(b)(8) the court of origin may declare the judgment enforceable.

2. The judge of origin who delivered the judgment referred to in Article 40(1)(b) shall issue the certificate referred to in paragraph 1 only if:

(a) the child was given an opportunity to be heard, unless a hearing was considered inappropriate having regard to his or her age or degree of maturity;

(b) the parties were given an opportunity to be heard; and

(c) 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 1980 Hague Convention.

In the event that the court or any other authority takes measures to ensure the protection of the child after its return to the State of habitual residence, the certificate shall contain details of such measures.

The judge of origin shall of his or her own motion issue that certificate using the standard form in Annex IV (certificate concerning the return of child( ren )).

The certificate shall be completed in the language of the judgment.”

Article 47

“1. The enforcement procedure is governed by the law of the Member State of enforcement.

2. Any judgment delivered by a court of another Member State and declared to be enforceable in accordance with Section 2 or certified in accordance with Article 41(1) or Article 42(1) shall be enforced in the Member State of enforcement in the same conditions as if it had been delivered in that Member State .

In particular, a judgment which has been certified according to Article 41(1) or Article 42(1) cannot be enforced if it is irreconcilable with a subsequent enforceable judgment.”

COMPLAINTS

The applicants complain under Article 8 of the Convention that the Aus trian courts ’ decisions violate their right to respect for their family life. In particular , they argue that the Austrian courts limited themselves to ordering the enforcement of the I talian court ’ s return order and did not examine their argument that the first applicant ’ s return to Italy would constitute a serious danger to her well-being and lead to the permanent separation of mother and child . They submit in particular that the first applicant has not had any contact with her father since mid-2009 and does not speak Italian while her father does not speak German. Moreover, they claim that the second applicant would not be able to accompany the first applicant to Italy or to exercise any access rights as criminal proceedings for child abduction are pending against her in Italy .

The applicants acknowledge that the position taken by the Austrian courts corresponds to the legal view expressed by the EJC in its judgment of 1 July 2010 but assert that the failure to examine the ir arguments against the enforcement of the return order nevertheless violates Article 8 of the Convention . As regards the possibility to raise their arguments before the Italian courts, the applicants submit in particular that they had already done so to no avail as regards the return order of 10 July 2009 and that they did not appeal against the ret urn order of 23 November 2011 or request that its enforcement be stayed for lack of financial resources. They claim that representation by counsel is obligatory in such proceedings before the Italian courts . However they have exhausted their financial means and do n ot qualify for legal aid in Italy .

QUESTIONS

Questions t o the parties

1. Would the enforcement of the first applicant ’ s return to her father in Italy subject her to treatment contrary to Article 3 of the Convention , given in particular the lapse of time, the lack of common language between father and child and the separation from her principal care-giver which the Austrian courts noted would cause significant traumatic effects to her ?

The Government are requested to give a detailed explanation as regards the enforcement measures whic h the Austrian courts may order pursuant to the Non-Contentious Proceedings Act . Moreover, they are requested to state whether section 110 (3) of the Non-Contentious Proceedings Act (which allows the courts to stay the enforcement of custody decisions if the enforcement endangers the best interests of the child) is inapplicable in the context of the Brussels IIa Regulation.

The applicants are requested to submit a copy of their application by which they requested the Venice Youth Court to stay the enforcement of its judgment of 10 July 2009 and a copy of the Venice Youth Court ’ s decision of 31 August 2010 refusing their application .

2. Would the enforcement of the first applicant ’ s return to her father in Italy amount to a violation of the first and second applicants ’ right to respect for their family life, contrary to Article 8 of the Convention?

Questions to the Italian Government

1. Do the applicants still have any possibility to challenge t he enforceability of the Venice Youth Court ’ s judgment of 23 November 2011 or can they apply for a stay of execution?

2. I n any such proceeding s is it obligatory to be represented by counsel? If so, what are the conditions for being eligible for legal aid?

3. In case of the first applicant ’ s return to her father, which specific measures do the authorities envisage to facilitate her integration in her new family and social environment?

4. W hich possibilities are open to the second applicant to obtain access rights and to apply for restoration of custody rights ?

5. Are criminal proceedings pending against the second applicant, and if so, would these proceedings prevent her, as she alleges , from travelling to Italy? In particular, is there any risk that she may be arrested and if so, detained for any length of time ?