Subsequent to non-return
The situation is of course different if the Spanish court has ruled that Blossom must not return, in other words the court has used one of the grounds for refusal listed above. The next phase depends on the reason for the non-return. Two categories of non-return orders can be identified:
| Category 1 non-return orders (Art. 12 and 20 Hague Child Abduction Convention) |
Category 2 non-return orders (Art. 13 Hague Child Abduction Convention) |
|---|---|
|
1. The abduction took place more than a year earlier and the child has become settled in his or her new environment (Art. 12). 5. The law of the requested State does not permit return, as it would be contrary to its fundamental principles (Art. 20). |
2. The person requesting return has not actually exercised his or her custody rights at the time of the removal or retention, or has acquiesced in the removal or retention. 3. There is a grave risk that returning the child would expose him or her to physical or psychological harm, or would place him or her in an intolerable situation, while no adequate measures to protect the child have been taken in the State to which the child is to be returned. 4. The child objects to the return and given his or her age and degree of maturity, it is appropriate to take account of his or her views. |
For Category 1, the abduction case is over and the child acquires a new habitual residence in the State to which he or she has been taken or where he or she has been retained. Further disputes concerning the parental responsibility for the child must be brought before the courts of this State, although a court in another Member State might have jurisdiction pursuant to one of the other provisions of the Brussels IIbis Regulation (see E-learning course, Thematic Unit 1, Part 1).
For Category 2, the case is not yet over: an extra phase exists. The steps are:
Step 1:
The court that has issued the non-return order informs the court that has jurisdiction or the Central Authority in the State where the child was habitually resident immediately prior to the removal or retention. The first court may send the information directly, or through the Central Authority of its State. In our example: the Spanish court sends the information, either directly or through the Spanish Central Authority, to the Dutch court or to the Dutch Central Authority. The information includes a transcript of the hearings and must be received within one month following the order.
Step 2:
The court in the State where the child was habitually resident immediately before the removal or retention, notifies the parties and invites them to make submissions so that the court can examine the question of the custody of the child. The submissions must be made within three months. In this way, the Dutch court takes up the jurisdiction that it has on the basis of Blossom’s habitual residence. This jurisdiction has not been lost due to the wrongful retention of Blossom in Spain.
Step 3a):
If the court receives no submissions, it closes the case.
Step 3b):
If the court receives submission, it deals with the merits of the case.
Step 4a):
If the decision of the Dutch court entails that Blossom must stay in Spain, Spain becomes her new habitual residence.
Step 4b):
If the decision of the Dutch court entails that Blossom must return to The Netherlands, this decision will prevail over the Spanish non-return order.
Step 5:
The Dutch court issues a certificate with the judgment entailing Blossom’s return. This certificate takes the form of Annex IV to the Brussels IIbis Regulation. The court issues the certificate of its own motion. The certificate is completed in the language of the judgment. The judgment must comply with certain requirements for the certificate to be issued.
- The child was given the opportunity to be heard, unless this was inappropriate given the child’s age or degree of maturity.
- The parties were given the opportunity to be heard.
- The court took account of the reasons for the non-return order.
* If the court or another authority takes measures for the protection of the child after his or her return, details of these measures are also mentioned in the certificate.
(Art. 42 Brussels IIbis Regulation)
Step 6:
With this certificate, proceedings for the declaration of enforceability are not required (exequatur has been abolished). This means that the Dutch judgment is directly enforceable in Spain, and throughout the EU, notwithstanding the prior Spanish non-return order. The European Court of Justice has confirmed this effect of the certificate. Even if the certificate contains an error, the judgment remains directly enforceable. If a party wishes to contest the content of the certificate, it has to address the court that has issued the certificate (see C-491/10, Aguirre Zarraga v. Pelz).
(Art. 11(6) – 11(8), 40 and 42 Brussels IIbis Regulation)