Key facts of the case:
A child born in Germany in 2005 to a German father and a Lithuanian mother, who were married at the time but are now divorced, is at present” (i.e. the time when the View was delivered [1.7.2008]) “in Lithuania with the mother, against the wishes of the father. In the context of divorce proceedings, the German courts awarded custody of the child to the father, and ordered that she be returned to him” (cit View, para 1). Instead of applying then only for recognition of the German decision before the competent Lithuanian court, the father started a full new procedure there, and, after having obtained a Lithuanian judgement refusing the child’s return, appealed against this decision instead of invoking an German order based on Article 11 (8) of Regulation No 2201/2003 (which “would have been the last word”, cit View, para 36). After a considerable number of proceedings having taken place in Germany as well as in Lithuania, finally the supreme court of Lithuania decided to refer to CJ.
Results (sanctions) and key consequences of the case:
The Court (Third Chamber) hereby rules:
- Once a non‑return decision has been taken and brought to the attention of the court of origin, it is irrelevant, for the purposes of issuing the certificate provided for in Article 42 of Council Regulation (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, repealing Regulation (EC) No 1347/2000, that that decision has been suspended, overturned, set aside or, in any event, has not become res judicata or has been replaced by a decision ordering return, in so far as the return of the child has not actually taken place. Since no doubt has been expressed as regards the authenticity of that certificate and since it was drawn up in accordance with the standard form set out in Annex IV to the Regulation, opposition to the recognition of the decision ordering return is not permitted and it is for the requested court only to declare the enforceability of the certified decision and to allow the immediate return of the child.
- Except where the procedure concerns a decision certified pursuant to Articles 11(8) and 40 to 42 of Regulation No 2201/2003, any interested party can apply for non‑recognition of a judicial decision, even if no application for recognition of the decision has been submitted beforehand.
- Article 31(1) of Regulation No 2201/2003, in so far as it provides that neither the person against whom enforcement is sought, nor the child is, at this stage of the proceedings, entitled to make any submissions on the application, is not applicable to proceedings initiated for non‑recognition of a judicial decision if no application for recognition has been lodged beforehand in respect of that decision. In such a situation, the defendant, who is seeking recognition, is entitled to make such submissions.